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October 19, 2017

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New filibuster likely won’t change Senate dynamic much

Twenty-four hours before the Senate voted to change its filibuster procedure, Senate Majority Leader Harry Reid had a choice.

By his own calculation, he had enough Democratic votes in place to dramatically change the extra-constitutional and oft-abused procedural filibuster practice by a simple, majority vote. It would have forced lawmakers to hold forth in the style of "Mr. Smith Goes To Washington" whenever they objected to legislation, and replaced the 60-vote onus on the majority to keep things moving with a 41-vote onus on the minority to hold them up.

At the same time, Reid had the trappings of a far more modern deal with Republican Leader Mitch McConnell in place. It would largely preserve the filibuster in its current form and expedite debate around it.

When push came to shove, despite the weeks he had spent threatening to procedurally school the Republicans for their unprecedented 385 filibusters last Congress, Reid went with the second, less controversial option.

“I’m not personally, at this stage, ready to get rid of the 60-vote threshold,” Reid confessed to The Washington Post on Thursday.

Now, how effectively the new filibuster rules help Congress circumvent roadblocks will also be largely up to Reid.

Under the new rules, the only surefire way for Reid to get around Republican opposition to a bill is to guarantee GOP senators at least two amendments to any piece of legislation. (Democrats would also be guaranteed two amendments.)

As frequently as Republicans threatened filibusters during Reid’s term as majority leader, Reid also set unprecedented records for using a procedure known as “filling the tree” — a move that blocks the minority party from being able to offer amendments to bills.

Senate Republicans complained about their lack of amendments as much as Reid complained about the Republicans’ use of the filibuster.

Reid maintained that had he allowed Republicans to propose more amendments, they would only have used them to up-end the legislative process. Agreeing to a trade-off of amendments in exchange for abandoning filibusters is as close to accepting some responsibility for the stalemates of the previous congresses as the majority leader is likely to get.

But even bipartisan concessions are no guarantee that the new filibuster rule will actually change the culture of the Senate. Nothing in the new procedural structure forces Reid to allow amendments to bills. There is also little incentive for Reid to allow more than two Republican amendments to any bill — a number that may sit fine with McConnell, but will likely rankle those non-leadership Republicans who find their proposals routinely left out in the cold. And on the use of filibusters to block judges and Cabinet nominees? There are really no changes.

The experiment the Senate set in motion Thursday is temporary: Adopted as part of the “standing orders” of the 113th Senate, the amendments-for-filibuster exchange will expire at the close of the current 2013-14 congressional session, unless it is renewed by the next Senate.

Already Reid appears to be acknowledging that the new filibuster might fall short of expectations.

“If their reforms do not do enough to end the gridlock here in Washington, we will consider doing more in the future,” Reid said in a statement Thursday night. “This proposal does not go as far as they and others would have wanted. But it is a step forward.”

The “they and others” to whom Reid refers are Democratic Sens. Tom Udall, Jeff Merkley and their allies, who angled for more sweeping filibuster reform.

In May, Reid publicly apologized to that group of senators for not heeding their advice more closely in 2010.

“These two young, fine senators said it was time we changed the rules in the Senate and we didn’t. They were right,” Reid said. “The rest of us were wrong.”

Indeed, Reid may end up repeating himself when it is time for the next Congress to determine its filibuster rules.

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