The possibility of Democrats losing their 60th Senate seat in Massachusetts next week, slim as it is, should concentrate minds once again on the travesty of the 60-vote threshold for enacting legislation in the Senate. The Senate being what it is, of course, prospects for a major change in rules governing filibusters are not that good, unless some new dynamic is introduced.
At The American Prospect, Mark Schmitt may have identified an avenue for Senate reform: link rules restricting filibusters to rules tightening up the use of the budget reconciliation process.
He predicts, quite plausibly, that if Republicans continue to gum up the works in the Senate by voting en bloc against cloture motions, needing just one Democrat (at present) to hold up action, Democrats will increasingly resort to the reconciliation process, which fast-tracks legislation and prevents filibusters. But that’s hardly an ideal scenario:
[B]ecause budget reconciliation was designed for a completely different purpose it makes an awkward fit for big policy initiatives. It’s like entering a house through the pet door instead of the front door — you might fit, if you twist just the right way, but it will be painful. Provisions that don’t directly affect the budget can’t be included, so, for example, much of the fine detail of health-insurance regulation in the current bill would likely have been lost if pushed through reconciliation. If Congress chose reconciliation as the means to pass a jobs bill, it could include tax credits for job creation but probably not many of the infrastructure-spending initiatives that would directly create jobs.
Still, what choice does any majority party in the Senate have if the minority party chooses to block all major legislation? The experience with health reform is all but certain to create momentum among Democrats for using reconciliation whenever possible. And thus the dilemma, says Schmitt:
So what we have in the Senate are two extremes: the rigid, partisan system of near-total stasis created by the filibuster, on the one hand, and the merciless, closed-door, majority-controlled arcane process of budget reconciliation on the other. A solution might be found in reforming both: Loosen the stranglehold of the filibuster…. And in return, offer the minority party a reform of the power of budget reconciliation that currently cuts them out entirely. Start by permanently limiting reconciliation to measures that actually reduce the deficit (a rule the Democrats adopted in this Congress) and then look at reforms that open up the process to longer debate and a wider range of amendments.
Schmitt cites a number of feasible filibuster reforms, including Sen. Tom Harkin’s proposal to gradually lower the votes needed for cloture after repeated efforts to move legislation are thwarted, along with the very popular idea of requiring actual stemwinding filibusters instead of paper threats. But what’s important is Schmitt’s notion of packaging together reforms attractive to both majority and minority parties. The big question is whether Republicans are interested in any reforms, if only because they hope someday to return to majority status in the Senate. Maybe a bill or two whipped through the Senate via reconciliation would bring them around.