With the possibility of meaningful filibuster reform looming next month, at least four Republican senators are now claiming that they are willing to strike a deal that would change the Senate rules without requiring Senate Democrats to invoke a procedure enabling them to do so with only 51 votes:
[T]op Senate Republicans — including John McCain of Arizona, Lamar Alexander of Tennessee, Jon Kyl of Arizona and Lindsey Graham of South Carolina — are trying to head off the showdown. They’re reaching out to Democrats who have expressed concerns about changing the rules by 51 votes, including Sens. Mark Pryor of Arkansas and Carl Levin of Michigan. And Republicans are reaching out to a key Reid ally, New York Sen. Chuck Schumer, the No. 3 Senate Democrat and chairman of the Rules Committee, to see whether a deal can be cut before the new Congress convenes in January.
McCain called it a “meeting of the minds.”
“I’d like to see what we agree on and where we can share our mutual concerns,” the Arizona Republican said.
There are a number of moderate rules reforms that reasonable Republicans should be willing to support if they are willing to deal with Senate Democrats in good faith. Last week, for example, Sen. Jeff Merkley (D-OR) proposed eliminating a quirk of the current rules which allows filibustering senators to force up to 30 hours of floor time to be wasted every single time the Senate confirms a nominee. This rule serves no purpose other than delay — if it were eliminated, minority senators would still be able to block nominees they oppose strongly unless the majority could produce 60 votes to break their filibuster — and if McCain, Alexander and their colleagues want to make a deal, agreeing to eliminate these 30 hours would be a good way to demonstrate that they are serious.
Nevertheless, Senate Democrats should be cautious of striking a deal in light of recent history. Two years ago, Minority Leader Mitch McConnell (R-KY) agreed to a “handshake deal” that ultimately achieved nothing more than a minor bill eliminating Senate confirmations of multiple low and mid-level appointees. The Senate minority’s practice of obstructing judges and other key appointees remained unchecked, and it continues to this day.
Similarly, in 2005, when Senate Republicans threatened to enact filibuster reform by a majority vote in order to end filibusters of a handful of President George W. Bush’s judicial nominees, many Senate Democrats eventually agreed to a deal that confirmed three of Bush’s most ideological judges. These included Judge Janice Rogers Brown, who once compared Social Security to cannibalism and who recently authored an opinion claiming that all labor, business or Wall Street regulation is constitutionally suspect; and Judge Priscilla Owen, who took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court and then wrote a key opinion reducing Enron’s taxes by $15 million.
So Senate Democrats have a history of agreeing to lopsided deals on filibuster reform that favor the other party. If they have the 51 votes necessary to move forward with reforms this time around, there is no good reason for them to accept a lesser deal for its own sake.