Is Filibuster Reform Still Possible?

Kentucky Republican Rand Paul’s recent performance of the first in-person Senate filibuster in the YouTube era may leave  Senate Democrats regretting they didn’t achieve stronger reforms of Senate rules for the process back in January.

Republicans have succeeded in delaying votes to confirm John Brennan to head the CIA and Chuck Hagel to run the Pentagon. And they're still blocking a vote on Obama appeals court nominee Caitlin Halligan and recess-appointed Consumer Financial Protection Bureau Director Richard Cordray.

But irked Senate Democrats appear stuck on whether to try to counter the GOP’s tactics by launching another effort to curb  filibusters. The problem is that rules changes traditionally are done only on the first legislative day of a new Congress.

Michael Earls, a spokesman for the pro-reform advocacy coalition called Fix the Senate Now, says legal opinion is divided over whether a mid-session change in Senate rules is feasible. One precedent occurred in 2005, when, after years of feuding over stalled confirmation votes on judicial nominees in the George W. Bush administration, an agreement brokered by the so-called Gang of 14 senators was put in place long after the Senate’s first day.

“The cleanest way to change Senate rules is to do it on the first day," says longtime congressional observer Norman Ornstein of the American Enterprise Institute. "Of course, declaring that the Senate is not a continuing body, and doing this by simple majority, would still provoke a huge firestorm.  But it can also be done midstream, which is what [then-Republican Senate Leader] Bill Frist proposed in 2005 as the "nuclear option." It would probably involve Harry Reid asking the chair to rule on the ability of the Senate to change its rules by majority, then appealing the ruling of the chair that it is not able to do so, with a majority able to overturn the ruling -- followed by a resolution to change the rules.”

Two filibuster reform activists, Sens. Jeff Merkley, D-Ore., and Tom Udall, D-N.M., both declined Government Executive’s invitation to comment on their potential plans.