As the 111th Congress comes to a close, Democrats are hailing the past two years as among the most productive in the legislature's history. But they are also blasting what they describe as unprecedented obstruction from the Republican opposition, which delayed the passage of major bills and left others in the dustbin. As lawmakers enjoyed a short holiday break last week, Democratic senators quietly pushed for procedural reform, especially in regard to the filibuster, a parliamentary tactic in the Senate that extends debate on a bill in order to avoid a final vote. Reformers see a clear road ahead because of a little-known option for changing the rules. But as always with Congress, the devil is in the details.
In late December, Senate Democrats sent a letter to Majority Leader Harry Reid urging him to take up reform in the new Congress, although it didn't mention any specifics. Many reformers want the Senate to explore the so-called constitutional option, which would, in theory, allow the Senate to bypass the normal 67-vote requirement for a rule change and set new rules with a simple majority and the support of the vice president, who also serves as president of the Senate. [See who donates the most money to Reid.]
Senators have debated the constitutional option for decades, but have never directly used it. That's because the mere threat is enough for parties to come to a compromise using established procedures. But its time may have come. "Those of us that think the Senate is broken believe that this is the way to get reform," says New Mexico Sen. Tom Udall, a Democrat who proposed the reforms.
According to parliamentary experts, the Senate can probably employ the constitutional option to change Senate rules at any time it wants, but reformers have been emphasizing that a rule change as the Senate begins would be the most orderly route. It doesn't appear there's much support for eliminating the filibuster or reducing the 60-vote threshold needed to overcome one. Rather, senators are looking at requiring those wishing to hold up legislation to debate it on the floor, like the old-fashioned filibuster seen in the classic movie Mr. Smith Goes to Washington. Today, senators can filibuster even if they're not on the floor. "When you have a vote, and 41 senators say that they want to have additional debate, then we'll have additional debate," Udall says. Other reforms Udall has suggested include prohibiting anonymous holds, which allow a single senator to hold up a bill or nomination without making it public. Udall says that he doesn't think there are enough senators to support the constitutional option yet, but that momentum is growing.
Congressional experts wonder whether the Senate will have the gumption to go through with it and whether the reforms would ultimately matter. Sarah Binder, a constitutional scholar at the Brookings Institution, says it isn't clear that requiring physical filibusters would cut down on the tactic. "On some issues, the minority will relish the spotlight and be willing to pay the costs of holding the floor," she says.
With filibuster use at an all-time high, don't expect this debate to go away in the upcoming Congress.