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Senate Filibuster Is in No Real Danger

Reid Just Blowing Off Steam With Comments on Reform; Democrats Unlikely to Pursue Changes

Senate Democrats are not poised to reform the chamber’s filibuster rule anytime soon despite recent comments from Majority Leader Harry Reid that he wishes he had backed such efforts last year.

A senior Senate Democratic aide said the Nevada Democrat’s comments Thursday were sparked by his frustration over Republicans’ refusal to accept a House-passed measure that would reauthorize the Export-Import Bank, which facilitates the sale of U.S. exports to foreign buyers.

A senior Senate Republican aide also said that Reid’s comments were not interpreted as an effort to jump-start filibuster reform, but more as Reid blowing off steam.

Senate Minority Whip Jon Kyl said Monday that he is not aware of a reform effort but noted that recent sparring on the Senate floor has revolved around the minority being able to offer amendments to legislation.

“The problem that we have right now is that too often Republicans are denied the opportunity to offer amendments, and that is clearly counter to all sense of fairness as well as the traditions of the Senate” the Arizona Republican said.

Republicans wanted to offer five amendments to the Export-Import Bank bill, including a Sen. Mike Lee (R-Utah) amendment to phase out the bank. While the bill has support from much of the Senate Republican Conference, some conservatives oppose the bank because they believe it amounts to corporate welfare.

On Monday, Reid spoke on the floor imploring Republicans to back the House bill.

“The House passed this bill without amendment,” Reid said, adding that the overwhelming House vote on the measure, 330-93, should be enough for Senate Republicans to accept it without amendments. The measure was the product of a rare bipartisan deal between House Majority Leader Eric Cantor (R-Va.) and Minority Whip Steny Hoyer (D-Md.).

Shortly before the Senate was to vote on sustaining a filibuster of the bill Monday, Reid reached a deal with Republicans to allow five GOP amendments and a guaranteed vote on final passage.

On Thursday, Reid sought unanimous consent to pass the measure as is. But Kyl objected and offered his own unanimous consent that would have set up a vote on the bill after consideration of five amendments, to which Reid objected.

After assailing Republicans for what he believes is obstruction, Reid went on to praise efforts by Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) to reform the filibuster, which critics argue has been abused and has led to gridlock on the Senate floor.

“If there were ever a time when Tom Udall and Jeff Merkley were prophetic, it’s tonight,” Reid said. “These two young, fine Senators said it was time to change the rules, and we didn’t.”

“They were right,” he continued. “The rest of us were wrong, or most of us anyway.”

But the comments belied the lengths that Reid went to last year to prevent those rules changes.

After the 2010 election, Udall, Merkley and Sen. Tom Harkin (D-Iowa) introduced a resolution to eliminate Senators’ ability to block a bill from coming to the floor for debate. In exchange, both the minority and majority would be guaranteed the ability to offer three amendments each, provided the proposals were germane to the underlying bill. Currently, 60 votes are needed to beat back a filibuster, or invoke cloture, on bills, nominations and procedural motions, including motions to proceed. Under the Udall-Merkley-
Harkin proposal, debate on motions to proceed would be limited to two hours.

The resolution would also attempt to reinstate the “talking filibuster” by forcing Members to stay on the floor if they object to a bill or nomination. If the Senate failed to produce 60 votes for cloture, the Senators who successfully filibustered would be required to hold the floor as long as the measure continued to be the pending business before the chamber.

Facing opposition from Senate leaders, the proposal failed to win the two-thirds needed to pass. Reid and Minority Leader Mitch McConnell (R-Ky.) subsequently entered into a gentlemen’s agreement under which Reid would refrain from filing cloture and McConnell pledged to limit filibusters that prevent measures from even being debated. But the agreement was largely rendered moot last fall when a deal fell apart during Democrats’ attempts to pass an appropriations package.

Meanwhile, watchdog group Common Cause, on behalf of itself, Members of the House and students eligible for the DREAM Act, is filing suit against the Senate for requiring a supermajority to beat back filibusters.

The suit, which will be filed in U.S. District Court for the District of Columbia, seeks a declaration that the number of votes needed to invoke cloture, or kill a filibuster, be reduced to a simple majority rather than the 60-vote supermajority required under current Senate rules. The lawsuit has an uphill battle, however, considering that the Constitution clearly states that each chamber “may determine the rules of its proceedings.”

If the court is not persuaded to deem the supermajority cloture hurdle as unconstitutional, the suit argues that the court declare unconstitutional the practice that the rules of the Senate carry over from Congress to Congress.

While the House approves its rules every Congress, “the Senate does not,” said Stephen Spaulding, Common Cause staff counsel. “The Senate considers itself a continuing body and says ‘the rules just apply.’”

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