At issue is whether Reid will push a series of measures on the first day of the new session next year with a 51-vote majority, or if he will instead try to bring enough Republicans on board so the rules pass with a two-thirds vote. Traditionally, the latter way is how Senate rules get modified, but since each new Senate reaffirms its own internal processes at the start of each two-year term—a non-controversial process that often is approved unanimously—backers of reforms say they have a small window to vote for new rules by a simple majority.
“The frustration within the caucus is real and [palpable] and has been building over time,” said Jim Manley, a former longtime aide to Reid. “Senator Reid is there as well. He shares their frustration. The only question is whether he is going to take up the so-called ‘nuclear option’ or is he going to do it by the 67-vote standard.”(Actually, Republicans used the same term in 2005, when they were in the majority and Democrats fought to preserve the filibuster.)
Democrats, in a clever bit of branding, have been calling this “the Constitutional Option,” since the right of each Senate to make up its own rules is enshrined in the nation’s founding document.
[M]any senior Democrats aren’t dissuaded by the argument of some of the longtime senators of their party, such as Carl Levin and Dianne Feinstein, who point out that it is important to keep the 67-vote tradition for changing Senate rules, since one day Democrats will find themselves in the minority, too. Change the rules to a 51-vote margin, and that will be a green light for every Senate majority from here on out to do as it wishes, they argue.
“Is there any doubt that if McConnell were in charge, that he would change the rules much more drastically than this, regardless of what we do now?” asked one top Democratic aide.
In The Wall Street Journal, Senator John Barrasso writes:
Under the current rules, the Senate's minority party has limited opportunities to influence legislation. It can do so in three main ways: by offering amendments in committee, by offering amendments on the Senate floor, and by negotiating with the majority party before the so-called cloture vote to end debate.
Sen. Reid has already gutted two of these three opportunities, which is a major reason for today's stalemate.
He has made unprecedented use of Senate Rule 14, for example, which allows the majority leader to bypass committees and write bills behind closed doors. Sen. Reid has used this rule to skip committees nearly 70 times, bringing bills straight to the floor—with zero input from members of the minority.
His other favorite maneuver, called "filling the tree," involves filling all the slots for amendments on the Senate floor so that no other senator (of either party) can offer one. He has done this 69 times since becoming majority leader in 2007. That is more than twice as often as the last four majority leaders combined.
One of the minority's few remaining options to improve legislation and represent their constituents is to try to get agreement on amendments before the cloture vote to bring the bill to the Senate floor. Because cloture requires 60 votes, a minority party with at least 40 seats can typically offer amendments this way. But if the 60-vote threshold is removed and this opportunity becomes unavailable, bills would move to a final vote without the minority ever having a chance to offer amendments. The minority—Republican or Democratic—would be dependent on the goodwill of the majority leader for any meaningful participation. And in Washington these days goodwill is in short supply.
