JONATHAN COHN DECEMBER 2, 2010
Greg Sargent has been reporting today about Jeff Merkley's new filibuster reform plan; in an update, Sargent writes about the question of how many votes it would take to change Senate rules (see here for my reaction to the substance of Merkley's proposal). The rules themselves say two-thirds are needed, but Merkley and Tom Udall of New Mexico believe that only a simple majority is needed at the beginning of a Congress.
I think they're both wrong, and that the Republicans pushing the nuclear option a few years ago are correct: if a majority wants to change the rules at any time, even in a lame duck session of Congress, they can do it. That's it. No need to wait for a new Congress, no need to put together a supermajority. If 51 Senators really want to rule by majority (party) rule, they can force it.
This is also the conclusion reached by Greg Koger in his comprehensive book, Filibustering--and, as far as I can tell, the consensus view of academics who specialize in Congress. Basically, if the majority changes the rules, it's not clear exactly what recourse the minority would have. The courts are not going to intervene, and what else could force a determined majority to back down? The reasons majorities have not gone nuclear in the past (as Sarah Binder, Anthony Madonna, and Steve Smith argued in a 2007 article) are political, not technical.
Indeed, I think that Harry Reid should have been threatening something like that since Republicans took to filibustering almost everything last year. And it's not too late now: in response to the GOP threat to hold up absolutely everything in the lame duck session apart from tax cuts and appropriations, there's nothing to stop Harry Reid from going to the Senate floor, blasting Republicans for obstructing the business of the nation, and threatening to go nuclear -- to eliminate the filibuster by majority vote -- unless Republicans knock it off.
That is, there's nothing if Reid has the votes. I suspect he does, at least for the bluff.
Hey, if Chris Dodd isn't willing to actually say that he would vote to eliminate the filibuster, he might be at least willing to set, ominously, behind Reid while the Majority Leader makes his speech. Sort of like the scene from Godfather II -- sometimes you don't need someone to actually have to say anything.
Obviously, it would be a stronger play if Reid -- and Barack Obama -- had done more to set the stage for it over the last two years. That might change the political reaction to a nuclear threat. But it wouldn't prevent it. The Democrats only have a few weeks remaining to get things done, and while I do think it makes sense for them to cut deals if necessary, there's no reason at all for them to just surrender, especially on issues in which majority public opinion appears to be with them (such as, for example, DADT).
I certainly don't blame the Republicans for trying to run out the clock; that's their right, and the obvious strategy in a lame duck session after a GOP landslide. But if Harry Reid asked my advice, I'd tell him: first, logrolling (I see Kevin Drum is thinking the same thing I'm thinking), and second, threaten to go nuclear. And don't back down without cutting a deal to get votes on a fair number of the remaining Democratic priorities.