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Sen. Jeff Merkley (D-OR)
Okay, before we decide once and for all whether this is a win or a loss, there are a few things I want out on the table. And the first point, appropriately enough, is that whenever you're talking about the Senate, since the answer to any question about it is either "well, yes and no," or, "it depends," the answer to whether this is a win or a loss will be the same. Yes and no. And, it depends.

There's little sense in trying to tell filibuster reform activists that this was a win. We here at Daily Kos were pushing for some specific reforms, aimed at increasing the burden of conducting a filibuster and placing it where it belongs: on the shoulders of those seeking to thwart the will of the majority. To be sure, there were those of us who questioned and still do question why that should be allowed at all, but accepting for the moment the idea that our bicameral legislature can allow for (and indeed, was designed for) experimentation with different processes and procedural rules, we still thought there was no good reason to allow thwarting the will of the majority to be an easy thing to do.

We didn't get those reforms. Conducting a filibuster is still going to be easy.

So it's a loss, right? Well, things did change for the better, and I'll explain how some of those changes might end up being bigger than we think. And, of course, because this is the Senate we're talking about, we'll talk about the down side of getting changes that might be bigger than we think.

But in addition to the small changes inside the Senate, we need to talk about the big changes we created outside. And we'll do that below the fold.

First of all, the results of the deal must be understood as having many moving parts. And when it comes to the elements of the deal, there are three different levels of change offered, and each one comes with a different level of commitment to those changes. As you might expect, the bigger the potential change, the less willing Senators were to committing to them.

At the highest level of permanence, and therefore the lowest level of impact, there are actual changes being made to the standing rules of the Senate. These are the most minor pieces of the deal, which stands to reason because they'll be put in place permanently. So they're exactly the ones you would think would have to be smallest in order to get the Republicans to agree to them. Next, there are temporary changes in the operation of the rules that will be adopted as a standing order, good only for the balance of the 113th Congress, which is to say for the next two years. These are somewhat broader in scope, and represent the changes Republicans were more skeptical of, but were willing to try out on a temporary basis. And lastly, there are changes on which Republicans would only commit to a handshake deal. (We know how well those tend to work out from the last round of the reform fight.) But these include versions of proposed reforms we liked a little better, but watered-down to the point where Republicans were willing to say, well, we'll experiment with them and see if they're really as horrible as we said they were, but we won't commit to allowing them to continue if we really hate them.

And what are those changes? The standing rules will adopt a new short cut on the motion to proceed, bringing it to an immediate vote if a cloture petition garners the signatures of the majority and minority leaders, plus those of 7 senators not affiliated with the majority and 7 more not affiliated with the minority, and cloture is then invoked. What does that save? Well, not much. Thirty hours of post-cloture debate, potentially. Though in reality that time is often waived under the current rules. In addition, the rules will now reflect that the three motions necessary to go to conference with the House to settle differences in bill text will be collapsed into one non-divisible motion. That cuts out two opportunities to filibuster right there.

The standing order will, for the next two years, limit debate on motions to proceed to four hours, meaning they can't be filibustered. But in exchange for that, each side is guaranteed the right to offer two amendments apiece, rotating in order and beginning with the minority. In practice, this will likely mean that those amendments will frequently come to the floor under unanimous consent agreements requiring 60 votes to pass. That's the old "painless filibuster," and in that respect, not much will have changed from current practice, except that the chief complaint of Republicans will have been removed. It was always their contention that they filibustered motions to proceed because they objected to being shut out from the opportunity to offer amendments by Harry Reid's parliamentary maneuvering. Now we'll see if that was just an excuse, I guess.

Finally, there's an informal agreement, described this way by HuffPo's Ryan Grim and Sam Stein:

First, senators who wish to object or threaten a filibuster must actually come to the floor to do so. And second, the two leaders will make sure that debate time post-cloture is actually used in debate. If senators seeking to slow down business simply put in quorum calls to delay action, the Senate will go live, force votes to produce a quorum, and otherwise work to make sure senators actually show up and debate.
That's at least reminiscent of some of the proposals to "flip the burden," like the "talking filibuster," or even the "listening filibuster" I proposed the other day. It's a far cry from the force of the original ideas, but it's at least a nod in the direction of some of the problems associated with filibuster abuse that we've highlighted in our campaign.

On top of these many layers regarding the substance of the deal (such as it is), there are likewise multiple moving parts regarding the procedure we used to get here. And on that level, there are two main branches: an inside game, and an outside game.

While there is much disappointment in the decision not to use a majority vote procedure—i.e., the constitutional option—to impose broader and more powerful reforms, a close observation of the process shows that things went pretty much as expected. That is, the credible threat of the constitutional option brought Republicans to the table to talk about finding a way out. So that's a good thing. But on the other hand, we didn't really get all that much out of it, so how much was it really worth? That question hasn't been answered yet, for two reasons. First, the option still exists and is still viable to try to leverage further reforms. And second, because above and beyond the cadre of Senate Dems who were grudgingly willing to use the constitutional option for leverage, there's a growing group who believe that the Senate ought to have an opportunity to openly reconsider and vote on its rules at the start of each new Congress, whether the filibuster is in need of reform or not. That's a good thing in itself, but keeping the focus on filibuster reform for the moment, what it means is that there's growing commitment to reform inside the caucus, and more reason than ever for those who aspire to the office to commit to it during their campaigns. And time is on our side here. As new blood pours into the Senate, it is partly your doing that they come in with reform in mind. And each new senator, of course, replaces an outgoing old senator. Time is on our side, and I'll leave it at that.

That's where the outside game comes in. Before the launch of this campaign, it was never even imagined that outside groups and grassroots activists could insinuate themselves into something many senators regard as almost a personal issue, that is, the rules of the Senate. After all, here was something that the Constitution itself made the prerogative of those 100 people, and no one else. They're the rules they have to live by and operate under day in and day out. And some of those people are there for decades at a stretch! This was no game for outsiders, let alone a bunch of Cheeto-munching bloggers. And the idea that you people would dare to lecture senators that the rules could actually be changed by a simple majority vote? Forget about it!

Well, that's the way it used to be. But in today's wired world, keeping organized, informed and motivated activists out of the club isn't as easy as it used to be. Still, we knew senators would take this issue personally. So we knew they'd have to hear about it from people they trust. Other repeat players in the legislative game, who could press the point with them in ways that punched the right buttons. And here I'm talking about D.C. interest group insiders. The kind of people who are often on a first name basis with senators. Or at least the kind of people who can ask for a meeting, get one, and then lean in close at the end and say, "Yeah, but seriously, all those great ideas we just talked about will come to nothing if there isn't some filibuster reform." And be taken seriously when they do.

For that, we had to enlist some inside help. And that's just what we did. And in exchange, we provided the outside help: the petitions, the emails and phone calls, the letters to the editor, blogging and public pressure that the grassroots can bring to bear. The insiders helped convince senators it was a serious issue and that the constitutional option was a serious answer. And we outsiders helped convince senators that people actually did care, and wanted reform.

I also think we ought to take stock of what changes we did make, and can build on in the future. Is there a future for filibuster reform? Absolutely. We haven't achieved the final goal yet, but some big changes have been made. And measured in historical terms, we're doing pretty well, and I attribute that to the inside-outside game plan we developed. After all, the fight to lower the cloture threshold from 2/3 down to 3/5 actually took 22 years of constitutional option fights! So, what are those changes we've accomplished? For one thing, there's the playbook of the inside-outside game I just described. You can't overstate the importance of having forced our way into the most insider-y game there ever was. For another, the traditional media no longer laughs in your face when you tell them the surprising truth about the Senate's ability to change its rules by a simple majority vote. Three years ago, that simply wasn't true. The idea was dismissed wherever it was brought up. "Everybody knows" that it takes a 2/3 vote to change the rules in the Senate. Right? At the very least we taught them that the answer to every Senate question is—say it with me—"Well, yes and no!" Just three years into the game, not only do the major traditional media outlets believe it can be done, but every major newspaper in the country is editorializing on filibuster reform and the procedural mechanism the Senate ought (or sometimes, ought not) to use to get the job done.

Another big change that, to the best of my knowledge, has gone completely unnoticed, is that we've finally arrived at an effective way of getting rid of the secret hold! Remember that? Yes, I know we've been told twice before (in 2007 and 2011) that the Senate had adopted rules to prohibit the practice, but in neither case have those rules been 100 percent effective. That's because the power of the hold (secret or otherwise) comes from the ability to filibuster the motion to proceed, something I've been telling you for a long time. Now, that ability is severely curtailed—at least for the next two years—by the terms of the standing order. Here's hoping it's something they can make permanent! But how's that for a surprise ending? While you were all watching the right hand carry on about the filibuster, what's this pulled out from behind the back in the left? Why, it's a fix for the old secret hold! Ta-da! How do you like that sleight of hand?

Lastly, I'll remind you one more time of what happened on Oct. 6, 2011. Formally speaking, it was the very weedy-sounding appeal of the ruling of the chair on a point of order against a motion to suspend the rules and permit the consideration of a non-germane amendment to the Currency Exchange Rate Oversight Reform Act of 2011 during post-cloture debate. But what it ended up being was the exercise by Harry Reid of the power of the majority to change the way the rules are interpreted, such that one of the more egregious abuses of the filibuster that had recently been rediscovered by the obstructionist minority was defeated entirely.

Now, it was a very rare and particular kind of filibuster abuse in question at the time, but the point was this: Harry Reid—wimpy, ol' Harry Reid whom everybody says would never have the spine to do such a thing—did in fact do such a thing on Oct. 6, 2011. And he brought every single Democrat in the chamber that day with him, with the notable exception of Ben Nelson. And you will note that that number totaled 51. And that it included filibuster reform foot-draggers Carl Levin, Max Baucus, Mark Pryor, Pat Leahy and Dianne Feinstein.

So, are we done with filibuster reform? Is this the last we'll see of any changes? Certainly we should not consider the job done. But it's also still possible that Harry Reid won't consider it finished either. And that's likely part of the bargain. Mitch McConnell remembers Oct. 6, 2011, even if the rest of us don't. If things get out of hand again, this is a tool Reid carries in his back pocket.

Why won't he use it more often? Well, you're probably correct if you think the answer is that he doesn't really favor sweeping reform. Majority leaders in the Senate rarely do, and I can't think of an example from the history of filibuster reform when the majority leader didn't stand opposed to the proposition to use the constitutional option to change the standing rules. That's just part of the role that floor leaders have to play as facilitators for their respective caucuses, and as repeat players in the parliamentary process and the bargaining games that go with it.

That's frustrating, but it always pays to know where we stand with him, and with others in the Senate. Even more important, though, is that we remember the part we played in the drama. And here it's important to note both the historic nature of our ability to force our way into the most insider-y of insider games, and how little even all our shouting, begging, cajoling, petitioning, and e-mailing really moves the needle. It does move, but it suggests that major change is going to be a long term project, and is going to require us to multiply our force by a couple orders of magnitude.

To that end (and in closing!) I offer you this:

It was the kind of meeting that conspiratorial conservative bloggers dream about.

A month after President Barack Obama won reelection, top brass from three dozen of the most powerful groups in liberal politics met at the headquarters of the National Education Association (NEA), a few blocks north of the White House. Brought together by the Sierra Club, Greenpeace, Communication Workers of America (CWA), and the NAACP, the meeting was invite-only and off-the-record. Despite all the Democratic wins in November, a sense of outrage filled the room as labor officials, environmentalists, civil rights activists, immigration reformers, and a panoply of other progressive leaders discussed the challenges facing the left and what to do to beat back the deep-pocketed conservative movement.

At the end of the day, many of the attendees closed with a pledge of money and staff resources to build a national, coordinated campaign around three goals: getting big money out of politics, expanding the voting rolls while fighting voter ID laws, and rewriting Senate rules to curb the use of the filibuster to block legislation. The groups in attendance pledged a total of millions of dollars and dozens of organizers to form a united front on these issues—potentially, a coalition of a kind rarely seen in liberal politics, where squabbling is common and a stay-in-your-lane attitude often prevails. "It was so exciting," says Michael Brune, the Sierra Club's executive director. "We weren't just wringing our hands about the Koch brothers. We were saying, 'I'll put in this amount of dollars and this many organizers.'"

Exciting, true. But lest the point be missed, it is no coincidence that the Sierra Club, Greenpeace, the Communication Workers of America and the NAACP were all partners in the coalition we helped put together to fight for a change in the filibuster rules. And we brought them all to the table by reminding them that everyone's agenda is frustrated by the filibuster, and so we might as well make common cause of it. And a few other things, too.

There's some permanence to this structure. So what I'm saying here is, don't let frustration lead you to let it go to waste.

Originally posted to David Waldman on Thu Jan 24, 2013 at 01:30 PM PST.

Also republished by Daily Kos.

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