Dems short on votes for filibuster reform

Democrats don’t have the 51 votes they need in the Senate to change filibuster rules that could make it harder for the GOP minority to wield power in the upper chamber.

Lawmakers leading the charge acknowledge they remain short, but express optimism they’ll hit their goal. 

“I haven’t counted 51 just yet, but we’re working,” said Sen. Tom UdallThomas (Tom) Stewart UdallSenate Democrats increase pressure for FBI investigation of Kavanaugh Trump administration weakens methane pollution standards for drilling on public lands Senate Dems want DOJ review of Giuliani's work for foreign entities MORE (D-N.M.), a leading proponent of the so-called constitutional or “nuclear” option, in which Senate rules could be changed by a majority vote. 

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“We’re building the momentum right now,” Udall said. “It’s hard to say at this point, but I think it’s looking very good. The last two years have really helped coalesce people’s minds around the idea that we need to change the way we do business.”

The problem for Udall and other supporters of filibuster reform is that many veteran Democratic senators remember when the filibuster was a useful tool in their years in the minority. 

In the tradition-bound Senate, these veterans aren’t thrilled with changing the upper chamber’s rules, particularly with the use of the controversial constitutional option — which has never been used to change the chamber’s rules. 

Under the option, Senate Majority Leader Harry ReidHarry Mason ReidKavanaugh furor intensifies as calls for new testimony grow Dems can’t ‘Bork’ Kavanaugh, and have only themselves to blame Dem senator: Confidential documents would 'strongly bolster' argument against Kavanaugh's nomination MORE (Nev.) would send to the Senate desk a resolution changing the rules and ask for it to be adopted immediately. The parliamentarian would rule the request out of order and then the presiding chair — likely Vice President Biden — would affirm or ignore the parliamentarian’s ruling. 

The Senate could then uphold Reid’s move to change the rules with a simple majority vote. Biden could break a 50-50 tie in Reid’s favor, meaning Udall and others backing filibuster reform only need 50 votes in the Senate to win.

The most likely time for Reid to use this option is at the beginning of the new Congress.  

Supporters call it the constitutional option, but it is well-known as the “nuclear” option for the meltdown in partisan relations that it could effect.  

All seven Democratic senators-elect — Tammy BaldwinTammy Suzanne BaldwinDems seek to rebuild blue wall in Rust Belt contests The Hill's Morning Report — Sponsored by United Against Nuclear Iran — The Hill interviews President Trump Poll: Democrats inch forward in Wisconsin MORE (Wis.), Martin HeinrichMartin Trevor HeinrichA Senator Gary Johnson could be good not just for Libertarians, but for the Senate too Election Countdown: What to watch in final primaries | Dems launch M ad buy for Senate races | Senate seats most likely to flip | Trump slump worries GOP | Koch network's new super PAC Rand Paul endorses Gary Johnson's Senate bid MORE (N.M.), Heidi HeitkampMary (Heidi) Kathryn HeitkampGOP plays defense on ObamaCare’s pre-existing conditions Doug Jones to McConnell: Don't 'plow right through' with Kavanaugh Heitkamp knocks GOP challenger for 'disturbing' comments on Kavanaugh allegations MORE (N.D.), Mazie HironoMazie Keiko HironoDem senator: Kavanaugh's credibility is 'already very questionable' Sunday shows preview: Trump sells U.N. reorganizing and Kavanaugh allegations dominate Kavanaugh fight roils an already ugly political climate MORE (Hawaii), Tim KaineTimothy (Tim) Michael KaineSherrod Brown says he's 'not actively considering' running for president The Hill's Morning Report — Sponsored by United Against Nuclear Iran — GOP again has momentum on Kavanaugh rollercoaster Poll: Kaine leads GOP challenger by 19 points in Va. Senate race MORE (Va.), Chris MurphyChristopher (Chris) Scott MurphyWant to improve health care? Get Americans off of their couches Situation in Yemen should lead us to return to a constitutional foreign policy Overnight Defense: Biden honors McCain at Phoenix memorial service | US considers sending captured ISIS fighters to Gitmo and Iraq | Senators press Trump on ending Yemen civil war MORE (Conn.) and Elizabeth WarrenElizabeth Ann WarrenDemocrats opposed to Pelosi lack challenger to topple her More Massachusetts Voters Prefer Deval Patrick for President than Elizabeth Warren Trump's trade war — firing all cannons or closing the portholes? MORE (Mass.) — have pledged to support filibuster reform. Sen.-elect Angus KingAngus Stanley KingA Senator Gary Johnson could be good not just for Libertarians, but for the Senate too Restoring our national parks would be a bipartisan win for Congress Restore our parks MORE (I-Maine) made filibuster reform a central plank of his campaign.

But Democrats can’t count on a number of their “old bulls,” as was reflected by a vote just two years ago. 

Udall, Sen. Jeff MerkleyJeffrey (Jeff) Alan MerkleyDem senator calls on Kavanaugh to withdraw after second allegation Feinstein calls for hold on Kavanaugh consideration Overnight Energy: Warren bill would force companies to disclose climate impacts | Green group backs Gillum in Florida gov race | Feds to open refuge near former nuke site MORE (D-Ore.) and Sen. Tom HarkinThomas (Tom) Richard HarkinOn Nicaragua, the silence of the left is deafening Dem Senator open to bid from the left in 2020 Senate GOP rejects Trump’s call to go big on gun legislation MORE (D-Iowa) proposed a package of reforms for the 112th Congress that would have eliminated filibusters on motions to proceed to new business. Their package also would have required senators wanting to hold up legislation or nominees to actually hold the floor and debate, and shortened to two hours the time that must elapse after a filibuster on a nominee has been cut off.

The package failed in a 44-51 vote, with Democratic Sens. Jim Webb (Va.), Max BaucusMax Sieben BaucusOvernight Defense: McCain honored in Capitol ceremony | Mattis extends border deployment | Trump to embark on four-country trip after midterms Congress gives McCain the highest honor Judge boots Green Party from Montana ballot in boost to Tester MORE (Mont.), Herb Kohl (Wis.), Mark PryorMark Lunsford PryorMedicaid rollback looms for GOP senators in 2020 Cotton pitches anti-Democrat message to SC delegation Ex-Sen. Kay Hagan joins lobby firm MORE (Ark.), Jack ReedJohn (Jack) Francis ReedNew York Times: Trump mulling whether to replace Mattis after midterms Overnight Defense: Biden honors McCain at Phoenix memorial service | US considers sending captured ISIS fighters to Gitmo and Iraq | Senators press Trump on ending Yemen civil war Senators press Trump administration on Yemen civil war MORE (R.I.) and Reid voting no. Democratic Sens. Dianne FeinsteinDianne Emiel FeinsteinGillibrand calls for Kavanaugh nomination to be withdrawn Feinstein calls for hold on Kavanaugh consideration Grassley releases letter detailing Kavanaugh sexual assault allegation MORE (Calif.), John KerryJohn Forbes KerryRubio wants DOJ to find out if Kerry broke law by meeting with Iranians Time for sunshine on Trump-Russia investigation Pompeo doubles down on criticism of Kerry: The Iran deal failed, 'let it go' MORE (Mass.) and Daniel Inouye (Hawaii) did not vote.

Even with Kohl and Webb retiring and Reid supporting filibuster reform this time, there’s no guarantee Democrats would be successful — particularly with the use of the controversial constitutional option. 

Udall said he hopes there will be more than 50 Democrats to support a rule change, but he’s meeting with Republicans just in case six Democrats balk. His hope is that he can convince Republicans to approve of some filibuster reforms that the entire Senate could agree to without the use of a nuclear option.

“I think there should be some support from Republicans on this one. We’re working with them. We’re having private discussions. I can tell you privately many Republicans are not happy with the way we do business in the Senate right now,” he said. 

Still, winning over Republican support for weakening a powerful tool for the minority party seems like wishful thinking. 

Senate GOP leadership aides say any effort to change the rules by a partisan party-line vote will “poison the well” for reaching bipartisan deals.

“We hope Democrats will work toward allowing members of both sides to be involved in the legislative process — rather than poisoning the well on the very first day of the next Congress,” said Don Stewart, a spokesman for Senate Republican Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGrassley: Dems 'withheld information' on new Kavanaugh allegation Kavanaugh accuser set to testify Thursday McConnell told Trump criticism of Kavanaugh accuser isn't helpful: report MORE (Ky.).

Reid, who often reminds colleagues and reporters that he has had to deal with 380 filibusters in the six years he has served as majority leader, told reporters last week that he will push filibuster reform at the start of the next Congress.

In recent years, the Senate chamber has been left empty for much of the time as leaders sort through various filibuster threats.

A Reid aide emphasized that Reid did not commit himself to the constitutional option, although the odds of gaining the 67 votes necessary to change the rules under regular order is miniscule. 

Stewart, McConnell’s spokesman, noted that Reid in January of last year promised to oppose the constitutional option.

“I agree that the proper way to change Senate rules is through the procedures established in those rules, and I will oppose any effort in this Congress or the next to change the Senate’s rules other than through the regular order,” Reid said Jan. 27.

In May, Reid recanted and praised Udall and Merkley as “prophetic.”

“These two young, fine senators said it was time to change the rules of the Senate and we didn’t. They were right. The rest of us were wrong — or most of us, anyway. What a shame,” he said.