By the end of the last session of Congress, Democrats in the Senate were increasingly frustrated with the success of the minority Republicans in blocking legislation. Many wanted to change the rules for filibusters, an opportunity available to them only during the first days of a new Congress. (For more background see this article from the Human Needs Report for 12/21/12.)
The deal, brokered between Majority Leader Harry Reid (D-NV) and Republican Leader Mitch McConnell (R-KY), included several changes. Key among them, the hours of debate that had been used to stall simply taking up a bill were limited. Now, when the Senate invokes cloture (that is, when the Senate gets at least 60 votes to limit debate) debate on a motion to proceed with the legislation will be reduced from a maximum of thirty hours to four. In exchange, Republicans will now have the option of offering two amendments to the bill. Previously for some legislation there was no opportunity to offer amendments. This modest reform does not prevent 30 hours of post-cloture debate on a final vote on the bill, but allows action on the bill to start without lengthy delay. Motions to proceed can also be taken up without delay and without the promise of amendments if Leaders Reid and McConnell, along with an additional 7 Republicans and 7 Democrats agree. This specific change is a standing order, meaning it is only valid during this session of Congress.
In addition, Senator Reid also convinced Senator McConnell to streamline the confirmation process for district court judicial nominees by shortening the post-cloture debate time from thirty hours to two hours. For most other nominations, with 60 votes to invoke cloture, debate will now be limited to no more than 8 hours. Thirty hours of post-cloture debate will remain an option for circuit judges and Supreme Court nominees.
While these changes were far more significant than the unofficial “hand shake agreement” last Congress, they stopped far short of the substantial reforms championed by Senators Jeff Merkley (D-OR), Tom Harkin (D-IA), and Tom Udall (D-NM), with the support of Fix the Senate, a coalition of labor and advocacy groups who favored a much stronger package of rule changes. Chief among their proposals was an end to the silent filibuster, requiring obstructing Senators to actually stand on the Senate floor and talk. They also hoped to flip the burden of filibustering onto the minority, requiring at least 41 members to be present in order to maintain a filibuster, rather than forcing the majority to muster 60 Senators to end one.
Fix the Senate and supportive Senators hoped to invoke what they called the “Constitutional Option” to pass a more extensive set of rule changes. Although Senate rules typically require a 2/3 supermajority to amend Senate procedure, reformers argued that the Constitution allows for a simple majority to change the rules at the start of each session. The threat of the Constitutional Option and subsequent precedent is largely what motivated Senator McConnell to agree to a smaller, bipartisan package of reforms.
Some critics feel that deal does not sufficiently crack down on filibuster abuse and obstruction. Others, particularly members of the Democratic leadership in the Senate, praised the change and expressed worry about further polarizing an already divided Congress.
“If [the Constitutional Option] were used, if it had to be used, it would have turned a gridlock into a meltdown,” said Sen. Carl Levin (D-MI). “The Senate would have had a meltdown.”
Despite the disappointment that the rules changes were not broader, even the most ardent supporters of limiting the filibuster hope that the new rules will increase the Senate’s effectiveness.