Before the week is done, one of the longest single "days" in the history of the Senate is expected to finally come to an end.
Amid a long-running dispute over decades-old filibuster rules, Senate leaders have used a parliamentary trick to leave the chamber in a state of suspended animation - in reality adjourned since Jan. 5 but officially considered in a long recess that's part of the same individual legislative day.
This nearly three-week break has taken place in large part so leadership could hold private negotiations to consider how to deal with a group of Democrats agitating to shake up the foundation of the world's most deliberative body, right down to challenging the filibuster.
To the dismay of a younger crop of Democrats and some outside liberal activists, there is no chance that rules surrounding the filibuster will be challenged, senior aides on both sides of the aisle say, because party leaders want to protect the right of the Senate's minority party to sometimes force a supermajority of 60 votes to approve legislation.
Instead, rank-and-file lawmakers will receive pitches from Sens. Charles E. Schumer (D-N.Y.) and Lamar Alexander (R-Tenn.), who have been negotiating more limited changes, such as with "secret holds" that allow an anonymous senator to slow legislation. In addition, some modifications could be made to the way confirmations are handled for agency nominees who do not have direct roles in policymaking.
Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.), both elected in 2008, have been pushing a never-before-tested option of changing the rules on a party-line vote and are considering demanding a vote on their proposal. That would require Vice President Biden, in his capacity as president of the Senate, to rule on whether the chamber can change its rules at the start of each new Congress.
"I'm waiting to hear. I'm told that the leaders are talking about possible changes and the way the floor works," Biden said in a brief interview while visiting the Senate last week. "I may have to rule, so I'm going to keep that opinion to me."
Neither Minority Leader Mitch McConnell (R-Ky.) nor Majority Leader Harry M. Reid (D-Nev.) would comment on the status of the talks, which have effectively ground the Senate to a halt.
With the 47 Republicans united in opposing any changes to filibuster rules, Udall, Merkley and Sen. Tom Harkin (D-Iowa), their most senior supporter, remained far short of the votes needed to nullify the rule known formally as "cloture," requiring 60 senators to vote yes to end debate so a final vote can be held. Many senior Democrats, who have watched the majority flip back and forth a half-dozen times in the past 20 years, balked at taking away minority rights, out of fear that Democrats could soon find themselves in the minority.
Moreover, while liberal groups such as MoveOn.org and some unions such as the Communications Workers of America are supporting the Udall effort, the liberal coalition is far from united on the issue. Some large members of the AFL-CIO have been noticeably silent, while some abortion rights groups have publicly declared their opposition to changing filibuster rules. That, some Democratic aides said, is because in the 1990s and in the early days of the George W. Bush White House - when Republicans controlled both ends of the Capitol - these groups relied on their Senate Democratic allies and the 60-vote threshold to protect key rights such as Davis-Bacon wages for federal works projects and the Roe v. Wade abortion decision.
The last time a change-the-filibuster debate occurred, the parties were on opposite sides. In 2005, then-Minority Leader Reid led the successful effort to defend the filibuster and rejected the idea that the Senate's rules could be changed in such a manner. This view holds that the Senate is a "continuing body" because only a third of its members are up for reelection every two years, as opposed to the House, where every member faces the voters every two years.
Republicans were trying to change the rules midyear, a position that Udall says is objectionable. Instead, his group of young senators points to several rulings by vice presidents of the past, Richard M. Nixon and Hubert H. Humphrey, in which they appeared to rule that the chamber's rules could be altered by a simple majority vote at the outset of each Congress.
That ruling, however, was never put into practice. Instead, that era's efforts at changing filibuster rules - driven by the Southern bloc's filibusters of civil rights legislation - took almost two decades to reach fruition, when in 1975 a large bipartisan group voted to lower the filibuster threshold from a two-thirds majority (67 votes if all senators appear) to 60 votes.
That rule change has led to the end of the old "Mr. Smith Goes to Washington"-style filibuster, as the onus is placed heavily on the majority to show up and deliver 60 votes. The minority no longer has to speak at length to stall legislation; it merely needs one senator on the floor to object to passing legislation or approving a nominee.
Udall wants votes on his proposals, particularly his "talking filibuster" requirement that would force the minority to hold the floor with lengthy debate but ultimately would not allow it to block a final simple-majority vote.
"We get back to the spirit of the filibuster," Udall said Saturday in a phone interview. "If the minority wants additional debate, they should be debating, not going home."
Yet even that change faces long odds. Instead, Udall and those in his camp may have to settle for some changes to secret-hold rules and an easier confirmation process for some nominees.
Paul Kane
Washington Post
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