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Senate Democrats Forfeit 50-Vote Option For Rules Changes

Senate Filibuster Reform

First Posted: 01/26/11 11:02 AM ET Updated: 05/25/11 07:25 PM ET

WASHINGTON -- The window to change the Senate rules during this session through a simple majority vote ended without action last night as lawmakers in the chamber agreed to adjourn the first day of the 112th Congress.

"They adjourned last night," said a top GOP aide. "We're no longer in the first legislative day."

A senior Democratic aide confirmed last night's adjournment, a formal end to the "first day" of the legislative session, which had actually been prolonged since early January. With it went the chance for Democrats to exercise what's known as the "constitutional option" -- a maneuver that rules-reform advocates said would have allowed members to present their procedural changes with 51 votes.

The Democrats' abdication of the constitutional option was negotiated hours and days earlier. In talks with leadership, Democratic lawmakers had expressed ambivalence about setting such a precedent for future chambers. Sens. Jeff Merkley (D-Ore.) and Tom Udall (D-N.M.) had asked for unanimous consent to consider their package of rule changes, but it was rejected.

"To be able to invoke the constitutional option, a resolution has to be placed on the Senate calendar and to place something on the calendar you need unanimous consent," a Senate aide said. "Unanimous consent was rejected last night."

In the past, the aide added, the minority party has traditionally not objected to unanimous consent requests on similar, start-of-the-session business.

In place of more sweeping action, lawmakers will push a set of smaller reforms, including an end to secret holds and a reduction in the number of judicial and executive-branch nominations requiring confirmation. Those measures could get votes as early as Thursday, and would be considered either as rules changes (which would require 67 votes for passage) or standing orders (which would have a 60-vote threshold.).

The parties may also reach an informal agreement under which Republicans would filibuster less in exchange for Democrats allowing them to offer more amendments.

"The Republicans would say we don't allow enough time for amendments. That we do something called 'fill the tree', which blocks amendment," Sen. Chuck Schumer (D-N.Y.), the chair of the Rules Committee, said Tuesday on MSNBC's "Morning Joe." "There's some justification on both sides there."

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