Get ready for plenty of liberal howling over this outcome, because Harry Reid made the mistake of overpromising and underdelivering. Reid’s vow to use the nuclear option to get rid of the filibuster turned into only a limitation on how many filibusters the minority can stage on one issue. The filibuster otherwise lives — even for judicial appointments, although somewhat restricted:
Progressive senators working to dramatically alter Senate rules were defeated on Thursday, with Senate Majority Leader Harry Reid (D-Nev.) and his counterpart, Minority Leader Mitch McConnell (R-Ky.), set to announce a series of compromise reforms on the Senate floor that fall far short of the demands. The language of the deal was obtained by HuffPost and can be read here and here.
The pressure from the liberal senators, led by Oregon Democrat Jeff Merkley and backed by a major coalition of progressive groups, created the political space for Reid to cut the deal with McConnell, which does include changes to how the Senate operates, but leaves a fundamental feature, the silent filibuster, in place.
The deal would address the filibuster on the motion to proceed, which had regularly prevented the Senate from even considering legislation and was a major frustration for Reid. The new procedure will also make it easier for the majority to appoint conferees once a bill has passed, but leaves in place the minority’s ability to filibuster that motion once — meaning that even after the Senate and House have passed a bill, the minority can still mount a filibuster one more time.
Reid won concessions on judicial nominations as well. Under the old rules, after a filibuster had been beaten, 30 more hours were required to pass before a nominee could finally be confirmed. That delay threatened to tie the chamber in knots. The new rules will only allow two hours after cloture is invoked.
Yes, but the filibuster still applies, and the post-cloture debate was moot anyway. The only really significant changes to the filibuster itself is that it can no longer be applied to a motion to proceed, but only to a floor vote, and that Senators must be present to filibuster. It still takes 60 votes to gain cloture, and it still means that bills — like, say, Dianne Feinstein’s assault-weapons ban — will have to gain significant Republican support to pass.
Dave Weigel breaks down the impact of the agreement:
We now have a comprehensive look at the filibuster reform package accepted by Mitch McConnell and Harry Reid. It’ll be schlepped to Democrats at an early afternoon meeting. And yes, it functionally ends the campaign for the “talking filibuster,” and for putting the burden of filibusters on the minority to get 41 no votes, instead of on the majority to get 60 ayes.
“It looks a lot like McCain-Levin,” says a Democratic aide.
And it does. … But the onus of the filibuster remains with the majority. Senators will remain able to place holds, and the holds will have to be broken with 60 votes — for this Congress, those will be bipartisan votes.
If I had to guess, I’d say that the prospect of living under any other rules in the minority after 2014 prompted some moderate Democrats to slow down the “reform” train, as well as the prospect of setting a 51-vote precedent for rules changes and placing it in Republican hands in 2015. Instead of dictating an end to the filibuster, Reid ended up settling for a compromise that refines it, but essentially leaves it in the hands of the minority.
It looks as though McConnell got his wish in reforming the amendment process, too. The first section gives the right to the minority to offer amendments in rotation with the majority, which means Reid can no longer “fill the tree” by introducing enough amendments to shut out Republicans, although the schedule becomes constricted significantly if cloture is invoked for both the majority and minority.
This is a smart play for both Democrats and Republicans in trying to repair the reputation of the upper chamber. Reid, however, will come out looking like the big loser not so much for what he gave up, but for what he promised and then failed to deliver.
Update: Actually, as Ezra Klein explains, even the motion to proceed can be filibustered, although the new rules offer a work-around:
But the deal Reid struck with McConnell doesn’t end the filibuster against the motion to proceed. Rather, it allows the chamber to sidestep the filibuster with agreement of the minority and majority leaders and seven senators from each party.
A pro-reform aide I spoke to was agog. “Right now, you have to negotiate with McConnell to get on a bill,” he said. “Tomorrow, if this passes, you still need to negotiate with McConnell to get on a bill. It changes nothing on how we move forward.” …
The filibuster is safe. Even filibusters against the motion to proceed are safe. And filibuster reformers have lost once again.
Klein asked Reid why he didn’t press harder for reform:
“I’m not personally, at this stage, ready to get rid of the 60-vote threshold,” Reid (D-Nev.) told me this morning, referring to the number of votes needed to halt a filibuster. “With the history of the Senate, we have to understand the Senate isn’t and shouldn’t be like the House.”
In other words …. 2015.
Update: A parting thought from Erick Erickson: