Trimming the Filibuster, Part Deux

It looks like Senate Democrats are assessing their options for reining in the filibuster, with an openness to negotiate with Republicans on a way forward. But if the GOP remains recalcitrant, the Democrats could play hardball.

Most Democrats appear to favor a negotiated settlement in the new Congress, and it is not yet clear whether there is majority Democratic support for a rules fight on the floor. If the situation did reach that point, much would depend on decisions by Vice President Joseph R. Biden Jr., a former longtime senator who in his current office serves as president of the Senate.

Mr. Biden could have to judge whether the Constitution and Senate precedents allow Democrats to use a simple majority vote to enact a rules change on the first day of Congress rather than gather the 67 votes typically required. Senate Democrats have consulted with Mr. Biden about their plans but say they have no sense of where he might come down, though as a member of the Senate for 36 years he would no doubt think carefully about any abrupt departure from tradition.

A move by Vice President Biden to make a strong ruling as head of the Senate would be far from without precedent. In a 1975 Time article entitled "Trimming the Filibuster," wrote about previous such moves from Vice Presidents:

Dilatory Tactic. Such tactics kept the issue in doubt for days; but the liberals patiently persisted. They got a boost from Rockefeller's ruling that each new Senate draws up its own rules and that until Rule 22 was readopted, only a simple majority was required to change past practices. Rockefeller was even more helpful when he deliberately refused to recognize Allen on three successive occasions when Allen sought futilely to make "a parliamentary inquiry." Although conservative Senators angrily assailed Rockefeller for this high-handed tactic, Rocky was technically right. The Senate rules specifically permit the presiding officer to ignore a parliamentary inquiry when he believes it is being used as a dilatory tactic. Allen's whole aim was to stall; he outsmarted himself by saying precisely why he sought recognition. Nor was Rockefeller's ruling that the Senate is a noncontinuing body all that extraordinary. Vice Presidents Hubert Humphrey and Richard Nixon had taken the same stand in previous filibuster fights.

At this point, I'm far from convinced that the Democrats will actually fully follow through in this gambit. Then again, I have little doubt that the Republicans will do the exact same thing the next time they are in control of the White House and the Senate, so it's hard for me to see why the Democrats shouldn't simply go ahead and preempt them. But we shall see...