When the new Congress begins on January 5, Democratic Senators Tom Udall (NM) and Jeff Merkley (OR) intend to push for a change in Senate rules. The two extreme outcomes are that there will be no reform at all or that the Senate will adopt rules making it effectively a majority chamber that is like almost every other democratic legislative chamber in the world.
For reasons that fall roughly somewhere between collective hysteria and Stockholm syndrome, the latter option of returning to the original Constitutional intent of majority rule is considered almost unthinkable. The most likely outcome is probably no change at all. Still, there is a real chance that we will see some minor changes made to Senate rules, since the Senate Democratic caucus is now voicing its unanimous support for the general concept of reform, thanks to the unprecedented levels of abuse of Senate rules by Republicans in the two most recent terms.
Given that the developing Democratic consensus is around changes that would make a noticeable impact but are quite minor compared to what is possible, what will likely end up being even more important is how the rules are changed instead of what changes are made.
If the rules are changed at the beginning of the next Congress, it will happen one of only two ways: either they will employ the “Constitutional option” using a simple majority or there will be a bipartisan compromise using a traditional two-thirds vote. Given how modest the changes being debated are, both potential paths might produce very similar changes this time, but which process is used could have a huge long-term impact.
Udall is pushing the Constitutional option which would have the first day of the new Congress declared the start of a new Senate. Currently, the Senate considers itself a continuous body, unlike the House, which starts anew every two years. As a new Senate, only a simple majority of Senators would be needed to choose to adopt whatever rules they want.
Bipartisan compromise using traditional two-thirds vote
The only other way Senate rules are likely to be change is if Republican Minority Leader Mitch McConnell, along with a large share of his caucus, is convinced Democrats are about to use the Constitutional option. This could convince them to try to reach a bipartisan compromise that might be slightly less far-reaching. Most importantly, these changes would be passed by a vote of 67 or greater, preserving the traditional requirement of a two-thirds vote to end a filibuster on rule changes. McConnell is currently in talks with Harry Reid about such a compromise.
The long-term impact of “how”
If Reid and McConnell do end up reaching a bipartisan compromise, it could possibly doom broader future reform for years. The modest changes would relieve some of the frustration with current extreme obstructionism by a handful of GOP senators but also would help maintain the mentality that a two-thirds vote is required for rules changes. This is effectively what happened in 1975, when the potential use of the Constitutional option resulted in a bipartisan compromise that brought the requirement for cloture down to 60 votes. We have seen almost no change to the filibuster since then.
On the other hand, if Democrats actually use the Constitutional option with a simple majority vote to make even modest changes, the critical thing is that they are creating a new dynamic. While their changes might not make the Senate function legislatively as a simple majority body, they would establish the precedent that the Senate is ruled by simple majority. In time, I don’t think a majority that can decide the rules of the chamber will long tolerate having rules that a minority can use to prevent them from governing the country. Even if Senates in the near future don’t officially eliminate the rules allowing a filibuster, the clear statement of precedent that a determined majority can, has, and could again change the rules might be enough in itself to dramatically curb its abuse.