BUFFALO, N.Y. -- A group of reform-minded senators believe they have a strong chance of changing the way the Senate does business in the next year, with support coalescing around three reforms: 1) No longer allowing senators to filibuster the motion to proceed, and instead allowing a set amount of time for debate; 2) ending secret holds; and 3) re-establishing the "talking filibuster." They hope these changes will return the body to majority rule and block a stubborn minority from holding up action.
Changing the Senate rules is essentially a two-step process. First, they have to convince the Vice President that the Constitution allows senators to adopt rules on the first day of a new congressional session with just 51 votes. Then, the majority must agree on what those changes should be.
Sen. Tom Udall (D-N.M.), one of the leaders of the effort to reform the filibuster, told The Huffington Post on Wednesday that senators in favor of reform will be filing a brief with Vice President Joe Biden in the coming days, "showing him what we intend to do, what our legal research shows, what the constitutional precedents are, what the three vice presidents have ruled about bringing rules changes on the first day. We're hopeful he will rule in line with previous vice presidents who have said that on the first day, you can file a motion to change the rules."
The senators last held a Democratic caucus meeting on reforming the filibuster on Dec. 17. Over the break, however, senators have continued making phone calls and meeting with each other in preparation for Jan. 5.
One of the reforms that Udall believes has the most support is a "talking filibuster." Therefore, if 41 senators vote to continue debate, there will actually be continued debate. (What generally happens now is that 41 senators vote to filibuster and the matter is considered defeated.) (If the reform is implemented, demonstrations like that conducted by Sen. Bernie Sanders (I-Vt.) on the floor of the Senate, where he railed against the tax cut proposal for hours on end, may become more commonplace.) Once the senators are done debating, cloture would be invoked and they would move to an up-or-down vote.
"That's the most important thing about the process is that we get to a final vote on the things the American people care about and give them an up-or-down vote, not have obstruction and delay and supermajority-voting that prevents us from doing what we should be doing," said Udall.
Some suggestions put forth by Udall have attracted bipartisan support. Republican Sen. Dan Coats (Ind.) has said that he supports removing the ability to filibuster the motion to proceed to debate. "I think what we need is the opportunity to debate and have an up-or-down vote on every issue," said Coats in an interview with NPR.
"If ... the goal is to have deliberation then blocking getting to debate makes no sense, and that's a very common sense thing," said Sen. Jeff Merkley (D-Ore.), another advocate of the reform effort. "If 41 people vote to say they want to continue debate, then forcing there to be that debate makes sense."
According to this measure, both sides of an issue would be allowed equal time for debate. After that, the legislation could move to a vote.
On another measure barring secret holds, 66 senators have signed a letter denouncing the practice.
One other idea has been gaining attention in recent days: newly elected Sen. Mike Lee (R-Utah) has said he would support a change stating the filibuster cannot apply to judicial nominees. President Obama has consistently been frustrated with how long it takes to get his judicial nominees approved, with many of them held up indefinitely by GOP filibusters.
Udall said that changing the procedure for judicial nominees is something they've been talking about, although he hasn't specifically talked to Lee -- his second cousin -- about the matter yet.
"I was at a meeting for the orientation for freshmen senators, and I proposed to all the freshmen senators who were there, Democrats and Republicans, that they take a real hard look at the rules because if they came with the idea they wanted to get some things done, under the current rules, they'd have a very hard time doing it," said Udall. "So we raised the issue that we wanted to be bipartisan in this effort and pull people in. Really what we're trying to do is make the Senate more accountable and prevent the obstruction and get back to majority rule rather than supermajority rule. Transparency is the essence of what we're seeking here."
Republican leadership hasn't jumped at the chance to support these rules reforms, telling The Huffington Post in an e-mail that Democrats first need to answer a question: "If you end the cloture rules, are you going to be okay with health care repealed in the next Republican majority without any chance to stop it?"
Udall's response: "I'm approaching this with the overriding premise that we need to protect minority rights, we need to protect the minority's right to amend, to speak and to participate to a significant degree, but we cannot allow the minority to obstruct the majority from governing, and that's the situation we've gotten ourselves into with these unprecedented filibusters and requiring a 60-vote majority on every single issue. We've had 89 filibusters the last two years. You don't have to go back very far and this was a rare occurrence."
Although Obama has said that Congress needs to "fix how the filibuster is used in the Senate," White House Communications Director Dan Pfeiffer recently clarified that the White House will not endorse any specific proposal. "I'm not sure a president getting involved in a legislative branch matter like that would be viewed as constructive by the other branch," he said.
Udall, however, said he would love the president's involvement. "I'm happy, at this point, to have anybody speak up about the abuse because I'm not sure all Americans know how far the Senate has gone in terms of supermajority rule, how far they've gone in terms of obstruction," he said. "So I'm happy to have anybody speak up, especially the President, who has a very big microphone."
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