Democrats don’t have the 51 votes they need in the Senate to change filibuster rules that could make it harder for the GOP minority to wield power in the upper chamber. Lawmakers leading the charge acknowledge they remain short, but express optimism they’ll hit their goal. “I haven’t counted 51 just yet, but we’re working,” said Sen. Tom Udall (D-N.M.), a leading proponent of the so-called constitutional or “nuclear” option, in which Senate rules could be changed by a majority vote.
Part of the struggle here is that some tenured Democrats recall what things were like when the shoe was on the other foot:
The problem for Udall and other supporters of filibuster reform is that many veteran Democratic senators remember when the filibuster was a useful tool in their years in the minority. In the tradition-bound Senate, these veterans aren’t thrilled with changing the upper chamber’s rules, particularly with the use of the controversial constitutional option — which has never been used to change the chamber’s rules. Under the option, Senate Majority Leader Harry Reid (Nev.) would send to the Senate desk a resolution changing the rules and ask for it to be adopted immediately. The parliamentarian would rule the request out of order and then the presiding chair — likely Vice President Biden — would affirm or ignore the parliamentarian’s ruling. The Senate could then uphold Reid’s move to change the rules with a simple majority vote. Biden could break a 50-50 tie in Reid’s favor, meaning Udall and others backing filibuster reform only need 50 votes in the Senate to win.
When Republicans were contemplating their own version of the nuclear/constitutional option during the Bush administration, it was to be limited to presidential judicial appointments only -- a response to Democrats' unprecedented campaign of obstructing majority-supported nominees. Their argument at the time was that the Constitution states that the president "shall appoint" members of the judicial branch, and that the "advice and consent" clause was never intended to entail super-majority support. (Article II, Section II of the Constitution does specify a two-thirds majority threshold for treaty approvals, but not for executive appointments). Democrats loudly objected to Republicans' proposal, eventually leading to the "Gang of 14" compromise, to which both parties have generally adhered ever since. At the time, one of the primary admonitions against the notion of changing Senate rules by a simple majority vote was that limiting the judicial filibuster would shove the Senate down a slippery slope to limiting or eliminating the "sacred" legislative filibuster -- which is precisely what Reid is seeking to do now. Though Democrats may be shy of the 51 votes they'd need at the moment, the complexion of the Senate majority coalition will change considerably in the upcoming session:
The most likely time for Reid to use this option is at the beginning of the new Congress. Supporters call it the constitutional option, but it is well-known as the “nuclear” option for the meltdown in partisan relations that it could effect. All seven Democratic senators-elect — Tammy Baldwin (Wis.), Martin Heinrich (N.M.), Heidi Heitkamp (N.D.), Mazie Hirono (Hawaii), Tim Kaine (Va.), Chris Murphy (Conn.) and Elizabeth Warren (Mass.) — have pledged to support filibuster reform. Sen.-elect Angus King (I-Maine) made filibuster reform a central plank of his campaign.
Republican leadership is hinting it would wage partisan warfare against the majority's entire agenda if Democrats attempt to jam through their procedural "reforms" -- a warning shot across Reid's bow:
...Winning over Republican support for weakening a powerful tool for the minority party seems like wishful thinking. Senate GOP leadership aides say any effort to change the rules by a partisan party-line vote will “poison the well” for reaching bipartisan deals. “We hope Democrats will work toward allowing members of both sides to be involved in the legislative process — rather than poisoning the well on the very first day of the next Congress,” said Don Stewart, a spokesman for Senate Republican Leader Mitch McConnell (Ky.).
Frustrated Democrats accuse the GOP minority of waging (or threatening) a record number of filibusters to thwart various initiatives and legislation over the last six years. Republicans counter that they've been forced to take these dramatic actions because Reid's unprecedented and imperious control has choked out other, less severe minority tools, such as offering amendments to bills. Facing another stalemate, and with both sides fuming, the Democrats are considering dropping a procedural bomb into the upper chamber. As I asked last week, shouldn't a non-nuclear compromise that addresses both sides' concerns at least be attempted before slinging partisan acrimony into the stratosphere?
The best solution to this problem would be for the Senate leadership to hammer out a compromise that would significantly curb the majority "filling the tree," in exchange for the minority curtailing their filibuster posturing.
The manner in which this issue is handled could set the tone for the next two years of American governance. Will we witness reasonable solutions, or will comity erode further -- leading to increased legislative dysfunction, and plunging Congressional approval to subterranean new lows?
UPDATE - Meanwhile, on the other side of Capitol Hill, Nancy Pelosi will meet with her caucus tonight to discuss her fate as their leader. At this point, I'd be amazed if she stays on as minority leader. She's unpopular and polarizing, and she's presided over two consecutive unsuccessful cycles for House Democrats.