Democrats Toy with Risky Power Play

Reining in the filibuster will cause a hue and cry, but some Democrats think it may be necessary and overdue.

Senate Majority Leader Harry Reid (D-NV) will have a big decision to make come January: whether to use an arguably heavy-handed rule change to make it easier for Democrats to push legislation through the Senate.

Pressure is rising for him to do so. He’ll be castigated by opponents if he does and rouse the anger of liberals if he doesn’t. He hasn’t made a decision, but he’s certainly thinking about it.

It’s all about the cloture rule -- the 60-vote threshold required to shut off a filibuster -- which in today’s Senate is the only way to get anything passed. With 59 Democrats and independents who align with Democrats, Reid rarely scores a win without the help of a moderate Republican or two. It’ll be much harder next year, with Republicans likely to cut into the Democratic majority by anywhere from four to eight seats.

Subscribe to Kiplinger’s Personal Finance

Be a smarter, better informed investor.

Save up to 74%

Sign up for Kiplinger’s Free E-Newsletters

Profit and prosper with the best of expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.

Profit and prosper with the best of expert advice - straight to your e-mail.

Sign up

Reid has a onetime chance to change the cloture rule, dropping the vote threshold to 55 or even lower. You might ask, how is that possible, since everything in the Senate is debatable and it takes 60 to stop debate. That is largely true, but there are a couple of exceptions, and one gives Reid an opening.

Here’s how it would go: The first order of business when the new Senate convenes in January is the recognition of the majority leader for the adoption of the rules of the Senate. Reid could include the cloture threshold change in the package he presents. Republicans would surely object, but the presiding officer, Vice President Joe Biden could deny the objection. The rules could then be accepted on a simple majority vote. It’s not a debatable motion requiring 60 to invoke cloture. Note that this is a onetime shot. Changing the rules after a new Senate adopts them requires 67 Senate votes.

Reid and Sen. Dick Durbin (D-IL), Reid’s lieutenant, and Charles Schumer (D-NY), chairman of the Senate Rules Committee, all say they are “considering” the option. “Considering” is different from saying “will” or “planning to.” Nonetheless, none of the three is saying “no way.” Reid goes so far as to say the cloture rule “needs to be reconsidered in light of the abuse.” Should Reid lose his reelection fight -- a distinct possibility -- either Durbin or Schumer is likely to become majority leader.

Reid and Durbin have met with frustrated and more liberal members of the caucus -- Sherrod Brown (OH), Pat Leahy (VT), Bernie Sanders (VT), Al Franken (MN), John Kerry (MA) and others -- to discuss the option.

Supporters of a change say the filibuster has been misused in modern times and insist there is no real basis for requiring a supermajority of 60 to stop it. As Schumer puts it: “Cloture is not in the Constitution. It’s not in the Declaration of Independence. It’s not in the Bill of Rights. It’s not in any amendment to the Constitution. It is not in any legal text. No judge has blessed it. It is basically nowhere, except in the Senate rules as amended in the 1900s, long after the first senators took their seat.”

Schumer can often be a partisan buzz saw and spinmeister, but he’s right on every part of his quote.

The cloture rule never existed until 1917, and that was at the request of President Woodrow Wilson to stop Senate intransigence and ratify the Treaty of Versailles, which ended World War I. Cloture, requiring two-thirds of the Senate as prescribed at the time it was implemented, was invoked.

It was also the case in early Senate history that cloture wasn’t required because objectors simply spoke as long as they could to stop a vote – the truest definition of a filibuster. There are several of note. Sen. Henry Clay of Kentucky is considered the pioneer of the filibuster, with a legendary stem-winder in 1841. (The length of Clay’s speech – on a banking bill – is disputed, but it is normally considered the better part of a full day, according to the Senate Historical Office.) The longest: Strom Thurmond (R-SC), who spoke for 24 hours and 18 minutes in opposition to a voting rights bill in 1957. The last line of his historic and record-setting filibuster was, “Mr. President, I expect to vote against this bill.”

The Senate changed the cloture rule in 1975, reducing it from two-thirds (67) to three-fifths (60). That change was made by Sens. Walter Mondale (D-MN) and Edmund Muskie (D-ME). This was post-Watergate, and the Senate was stymied. Mondale and Muskie shored up the 67 votes required to change the rules. They didn’t use what Reid, Durbin and Schumer call the “Constitutional Option.”

Maybe they didn’t need to or want to. Maybe Reid both wants to and needs to. We’ll all see in the first few minutes when the Senate gavels to order in January.

Richard Sammon
Senior Associate Editor, The Kiplinger Letter