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 UdallTom UdallOvernight Defense: Milley reportedly warned Trump against Iran strikes | Pulitzer Prize-winning photographer killed in Afghanistan | 70 percent of active-duty military at least partially vaccinated Biden nominates former Sen. Tom Udall as New Zealand ambassador Senate Democrats befuddled by Joe Manchin 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.
“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 ReidHarry Reid calls on Democrats to plow forward on immigration Democrats brace for tough election year in Nevada The Memo: Biden's horizon is clouded by doubt 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 BaldwinProgressives push back on decision to shrink Biden's paid family leave program Building back better by investing in workers and communities The Hill's Morning Report - Presented by Facebook - Senate nears surprise deal on short-term debt ceiling hike MORE (Wis.), Martin HeinrichMartin Trevor HeinrichDemocrats say they're committed to reducing emissions in Biden plan GOP lawmakers introduce measure in support of Columbus Day Overnight Equilibrium/Sustainability — Presented by Schneider Electric — Deadly Ida floodwaters grip southeast US MORE (N.M.), Heidi HeitkampMary (Heidi) Kathryn HeitkampWashington's oldest contact sport: Lobbyists scrum to dilute or kill Democrats' tax bill Progressives prepare to launch counterattack in tax fight Business groups aim to divide Democrats on .5T spending bill MORE (N.D.), Mazie HironoMazie Keiko HironoProgressives push back on decision to shrink Biden's paid family leave program Democrats at odds with Manchin over child tax credit provision The Hill's Morning Report - Presented by Facebook - Senate nears surprise deal on short-term debt ceiling hike MORE (Hawaii), Tim KaineTimothy (Tim) Michael KaineGOP blocks Senate Democrats' revised elections bill Emanuel defends handling of Chicago police shooting amid opposition to nomination Senate Democrats ditch Hyde amendment for first time in decades MORE (Va.), Chris MurphyChristopher (Chris) Scott MurphyThe Memo: Cuts to big bill vex Democrats Democrats struggle to sell Biden plan amid feuding Expats plead with US to deliver COVID-19 vaccines MORE (Conn.) and Elizabeth WarrenElizabeth WarrenOn The Money — Democrats eye tough choices as deadline looms Under pressure, Democrats cut back spending Progressives push back on decision to shrink Biden's paid family leave program MORE (Mass.) — have pledged to support filibuster reform. Sen.-elect Angus KingAngus KingGOP blocks Senate Democrats' revised elections bill Dems hit crossroads on voting rights Senate appears poised to advance first Native American to lead National Park Service 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 MerkleyJeff MerkleyGOP blocks Senate Democrats' revised elections bill Emanuel defends handling of Chicago police shooting amid opposition to nomination Paris Hilton takes to Capitol Hill to advocate for troubled teen care reform MORE (D-Ore.) and Sen. Tom HarkinThomas (Tom) Richard HarkinFCC needs to help services for the deaf catch up to videoconferencing tech Biden celebrates anniversary of Americans with Disabilities Act Ex-Rep. Abby Finkenauer running for Senate in Iowa 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 BaucusBiden nominates Nicholas Burns as ambassador to China Cryptocurrency industry lobbies Washington for 'regulatory clarity' Bottom line MORE (Mont.), Herb Kohl (Wis.), Mark PryorMark Lunsford PryorBottom line Everybody wants Joe Manchin Cotton glides to reelection in Arkansas MORE (Ark.), Jack ReedJack ReedSenators ask Biden administration to fund program that helps people pay heating bills LIVE COVERAGE: Senators press military leaders on Afghanistan Top Republican: General told senators he opposed Afghanistan withdrawal MORE (R.I.) and Reid voting no. Democratic Sens. Dianne FeinsteinDianne Emiel Feinstein Ban on new offshore drilling must stay in the Build Back Better Act Senate GOP signals they'll help bail out Biden's Fed chair Jane Fonda to push for end to offshore oil drilling in California MORE (Calif.), John KerryJohn KerryQueen Elizabeth recognizes Kerry from video message: 'I saw you on the telly' Fossil fuel production must be cut in half to control global warming: study Pressure grows for breakthrough in Biden agenda talks 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 McConnellGOP blocks Senate Democrats' revised elections bill A politicized Supreme Court? That was the point The Hill's Morning Report - Presented by Uber - Democrats optimistic after Biden meetings 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.