Filibuster "reform" lacks the votes

Democrats have made a lot of noise about pushing through rules changes intended to water down the filibuster, but it turns out that they can’t even get a majority to agree to it.  The Hill reports that filibuster reform will get quietly tabled after Harry Reid discovered a lack of enthusiasm for the proposal.  Perhaps some Senate Democrats are hearing footsteps:

Senate Democrats do not have the votes to lower the 60-vote threshold to cut off filibusters.

The lack of support among a handful of Senate Democratic incumbents is a major blow to the effort to change the upper chamber’s rules.

Democratic leaders in both the House and Senate are pushing for filibuster reform at the start of the new Congress next year.

Five Senate Democrats have said they will not support a lowering of the 60-vote bar necessary to pass legislation.  Another four lawmakers say they are wary about such a change and would be hesitant to support it.

Ezra Klein has been doing some research on the subject, and says that all Democrats need are 51 votes to make the change — but it will have to come in 2011:

If you can’t manage the 60 votes to overcome a filibuster, you can’t manage the 67 votes to change the rules and end the filibuster. At least in theory.

But in practice, there’s another path open to the Senate’s growing ranks of reformers: The so-called “constitutional option,” which is being pushed particularly hard by Sen. Tom Udall, but is increasingly being seen as a viable path forward by his colleagues.

The constitutional option gets its name from Article I, Section V of the Constitution, which states that “Each House may determine the Rules of its Proceedings.” In order to fulfill this constitutional order, the Senate must be able to, well, determine its rules. A filibuster, technically, is a way to stop the Senate from determining something by refusing to allow it to move to a vote. Because stopping the Senate from considering its own rules would be unconstitutional, the chair can rule against the filibuster, and the Senate could then move to change its rules on a majority vote.

One caveat: Many people, including Udall himself, believe this has to happen at the beginning of a new Congress. If it doesn’t happen at the beginning of a new Congress, then Congress is considered to have acquiesced to the previous Congress’s rules, and a filibuster against further rule changes wouldn’t interrupt the constitutional right to determine the rules.

The trick, of course, is getting the necessary 51 votes in January.   Democrats may find themselves short, if the midterms turn into a tsunami.  Even if they have 52 or 53 votes, enough Democrats have to stand for re-election in 2012 that the remaining Democrats may wish to consider whether they want to hand a filibuster-buster to a majority Republican chamber in 2013.  The 2006 election was particularly good to Democrats in the Senate, and they’ll be defending a lot more seats than the GOP — likely with an unpopular President at the top of the ticket.

Under Ezra’s scenario (which is well researched, by the way, so read it all), the incoming majority of the 113th Congress could simply adopt the filibuster-buster rule from the 112th Congress by not making any changes to it.  It’s a default at that point, and Republicans would have to act to allow Democrats to have filibuster power.  If the GOP defeats Obama in that same election, it means no more judicial filibusters, no way to stop legislation, and the elimination of the need to consult across the aisle at all.

So will they want an unfettered President Palin or President Jindal, for example, to appoint judges to the Supreme Court and lower benches?  Leave themselves with no way to stop a Republican agenda led by a President Daniels or a President Herman Cain?  If they find that palatable, then expect the much-smaller Democratic majority to sign up for that notion in January, if it exists at all.  I suspect that most Democrats have been in the Senate long enough to know how it works to be in the minority — and that the same folks on the Left who want to eliminate the filibuster will bemoan its absence shortly thereafter.

Update: Fred Bauer is equally skeptical, and believes more than just nine Democrats in the Senate want to hold onto the filibuster prerogative.