The Senate's Nuclear Deal Isn't Enough for One Senator

Matt Berman

From the looks of it, the United States Senate averted a crisis this week. After a historic Monday night meeting, the chamber managed to dodge the "nuclear option," which would have forced a rule change to push through executive nominees. As part of the deal, Senate Republicans agreed to hold up-or-down votes for seven of President Obama's nominees. That's already resulted in the confirmation of Richard Cordray to head the Consumer Financial Protection Bureau and a clear path for Thomas Perez to the Labor Department.

But not everyone is in pure celebration mode. Just because these nominees are virtually guranteed a path to confirmation doesn't mean that Sen. Tom Udall, D-N.M., is ready to give up his fight for filibuster reform.

In a statement Tuesday, Udall called the deal a "positive breakthrough," and said that it "should help solidify that 'obstruct and delay' can't be the norm in the Senate any more." But there was a caveat: "I'm putting my colleagues on notice," he wrote. "If the Senate goes back to 'business as usual' and endless filibustering, I will be back fighting harder than before for reform."

Udall has foughtplenty already. His most recent push for filibuster reform was at the beginning of this Congress, back in January. Udall's plan—also sponsored by Sens. Jeff Merkley, D-Ore., and Tom Harkin, D-Iowa—was in part based around a "talking filibuster." Now, for a bill or nomination in the Senate to move forward, it takes 60 votes to invoke cloture, which shuts off debate. If that doesn't happen, the bill or nomination is, for all real purposes, dead. At least temporarily.

Under the "talking filibuster" proposed by the three senators, if cloture fails on a bill or nominee that still has majority support, the Senate majority leader can begin extended debate that will be shut off when no senator continues to speak. At that point, cloture will be considered to be invoked. So for there to be a filibuster, senators would actually have to stick around and explain their reasoning on the floor. In effect, this would look like a lot more Rand Paul and a lot less like Manchin-Toomey.

The Udall-Merkley-Harkin proposal, which also included an expedited process for dealing with nominations, wasn't a perfect solution to Senate gridlock, but it wasn't necessarily supposed to be. In any event, the effort didn't succeed: Instead, Majority Leader Harry Reid and Minority Leader Mitch McConnell reached a deal that made moderate changes but still left the basic structure of the filibuster in place.

That deal came about much like this week's dea: through Reid's threat of going nuclear. Just like he did this week, in January Harry Reid threatened to transform the way the Senate operates, and wound up instead walking away with a more moderate deal.

Late Wednesday, Udall's office told National Journal the senator still believes the Senate needs a talking filibuster and he plans to work toward that and other changes at the start of the next Congress in January 2015. Why wait until then? The basic argument, and one that Udall subscribes to, is that on the first legislative day of a new session, the Senate's rules do not yet apply, so they can be changed by a simple majority. It's, in some ways, a more refined version of going nuclear. 

In an e-mailed statement, Udall expressed some skepticism at relying on the "good faith" inherent in this week's handshake deal on executive nominees:

Whether the Senate functions shouldn't hinge on the good nature and intentions of all 100 senators. The rules should protect the minority's right to be heard, but should discourage total gridlock, whether we're in a crisis or not. 

Asked what would trigger him to push for more reforms, Udall said, "We can't go back to endless filibustering of presidential appointments in which one side blocks an otherwise qualified nominee to prevent the agency itself from functioning." He also pointed to the ripple impact of nominees getting stuck in the Senate, saying, "it's not just the Senate that grinds to a halt, either, it's entire federal agencies or—in the case of some judicial appointments—federal courts, many of which are already shorthanded." 

And it looks as if Udall likely isn't alone. In a statement after this week's nominations deal, Merkley, while calling the deal "a big win," issued a similiar warning about what happens from here: "If the minority party decides to continue to engage in a systematic obstruction strategy, we will yet again need to revisit the rules discussion."

The other member of January's reform troika, Harkin, gave an impassioned speech on the Senate floor before the deal:

As evident with the treatment of these outstanding nominees, I believe reform has never been more urgent and necessary.



The current use of the filibuster has nothing to do with ensuring minority rights to debate, or about making sure their voices are heard. Rather, it has everything to do with obstruction, hijacking democracy, and a pure power grab designed to nullify elections in which the public has rejected Republican ideas and placed them in the minority.

So while there wasn't a nuclear explosion in the Senate this week, tensions are still festering. And for Udall and other senators, the continuation of the Senate status quo won't do.