Move to Reform Senate Filibuster Rules Gains Momentum –
What Does President Obama Think?

February 12, 2010 12:31 PM



The Plum Line’s Greg Sargent reports today that Sen. Dick Durbin, D-Ill., the number two man in the Senate Democratic leadership and a close ally of President Obama’s, is behind a move by Sen. Tom Harkin, D-Iowa, to reform Senate rules so as to not require 60 votes for every measure to proceed to a full vote.

"The Harkin proposal would officially amend the process by which a filibuster is broken, allowing a four-step process that could eventually allow it to be broken by a majority vote," Sargent writes. "The first vote would require 60 votes to break the filibuster, followed by motions requiring 57, 54, and finally, 51 votes. The key is that Durbin is apparently playing an active role in backing the Harkin effort."

Yesterday, Senate Majority Leader Harry Reid, D-Nev., didn’t seem to think such a move was likely. As Paul Kane of the Washington Post noted, the high hurdle for Harkin’s reform is that changing the rules requires 67 votes, so eight Republicans would need to "join the 59 members of the Democratic caucus to alter the rules, something Reid said is not going to happen.

"I'm totally familiar with his idea," Reid said Harkin’s proposal. "It takes 67 votes, and that, kind of, answers the question."

But what does the White House think?

The president has expressed frustration at how often Republicans have required Democrats to achieve 60 votes since becoming the minority party after the November 2006 elections.

In December, interviewed by Jim Lehrer on PBS’s NewsHour, the president said, "as somebody who served in the Senate, who values the traditions of the Senate, who thinks that institution has been the world's greatest deliberative body, to see the filibuster rule, which imposes a 60-vote supermajority on legislation - to see that invoked on every single piece of legislation, during the course of this year, is unheard of. I mean, if you look historically back in the '50s, the '60s, the '70s, the '80s - even when there was sharp political disagreements, when the Democrats were in control for example and Ronald Reagan was president - you didn't see even routine items subject to the 60-vote rule."

The president said "if this pattern continues, you're going to see an inability on the part of America to deal with big problems in a very competitive world, and other countries are going to start running circles around us. We're going to have to return to some sense that governance is more important than politics inside the Senate. We're not there right now."

He suggested that if the 60-vote requirement is "used prudently, then I don't think it's harmful for our democracy. It's not being used prudently right now. And my hope would be that whether a senator is in the majority or is in the minority, that they're starting to get a sense, after looking at this year, that this can't be the way that government runs."

On January 6, I asked White House press secretary Robert Gibbs about this frustration (and keep in mind this was before Sen. Scott Brown, R-Mass.!) and whether the president intends to try to change the rules.

TAPPER: I wanted to follow up also on a comment the President made in one of the interviews he gave right before he went to Hawaii. I forget, and I apologize, whether it was with NPR or with PBS. But he was asked about the fact that the minority in the Senate has required the invoking of cloture I believe more than ever before and what he thought should be done about it. There are -- the measures that would require a change of the rules would be -- one would require 67 votes, which you don't have. One would be a reverse nuclear option, which might cause serious damage to the Senate. The other one is a bill offered by Senator Harkin, which would have some sort of sliding scale of cloture. Is there going -- especially with facing the prospect of losing seats in the Senate in 2010, or at the very least a wash, but certainly nobody predicts that you guys are going to gain any -- is there any consideration or any support by the President for any of the measures to change the rules so that he can have an easier time getting his agenda put forward?

GIBBS: Jake, I have not heard of any discussion. I will check with Legislative Affairs. I have not heard discussion here about support for changing those rules. I know Senator Harkin's bill has been talked about for some time, going back to some judicial disputes that were had not too long ago. Jake, I think the President's overriding frustration has been -- I mentioned this a little bit yesterday in dealing with some personnel announcements -- is it's not simply that you see tactics purely to delay, purely to watch the clock wind around and around, but they don't even appear to be philosophical, right? When something gets filibustered and we take 30 hours to debate it, and then the ultimate vote is 88 to 10, is the -- was the filibuster predicated on anything else other than watching the clock wind around? Was it -- it's not a philosophical argument. It's just an argument, I suppose, to hear people talk in order to delay the passage of vital legislation for the American people. I think the President -- I think the American people would be frustrated, and are frustrated, by the lack of not getting anything done just to hear somebody talk.

TAPPER: A lot of liberal activists want you guys to do something about it. Are you going to?

GIBBS: I will check with Legislative Affairs. Like I said, I have not heard anything about changing the rules.

-jpt



UPDATE: My colleague Rich Braham points out that Sen. Tom Udall, D-NM, has indicated in this Daily Kos blog post that he plans to challenge the filibuster under Senate rules during the new congress next January.

If Udall's proposal works, the rules would change so that ending the filibuster would only require a simple Senate majority.

Wrote Udall: “While I am convinced that our inability to function is our own fault, we have the authority within our Constitution to act.

"Article I, Section 5 of the Constitution states, 'Each House may determine the Rules of its Proceedings...' Yet, at the beginning of the 111th Congress, unlike in the House of Representatives, there was no vote on a package of rules that would govern the body for the two years that comprises a term of Congress.
"As a result, 96 of my colleagues and I (three senators had an opportunity to vote on the last change to the rules in 1975) are bound by rules put in place decades ago and make conducting the business of the Senate nearly impossible.

"When the authors of the Constitution believed a supermajority vote was necessary, they clearly said so. And while the Constitution states that we may determine our own rules, it makes no mention that it require a supermajority vote to do so.

"In addition, a longstanding common law principle, upheld in Supreme Court decisions, states that one legislature cannot bind its successors. To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates. This should not be.â€