Tom Harkin Looks To Courts To Reform The Filibuster

Sen. Tom Harkin (D-IA)
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Senator Tom Harkin (D-IA), a long-time advocate of filibuster reform, was the lone senior senator to publicly align himself with Sens. Tom Udall (D-NM) and Jeff Merkley (D-OR) in their effort to change the Senate’s rules.

Those efforts were neutered this week by the leaders of both parties. With the exception of some modest tweaks, Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) agreed that the rules would remain largely unchanged. Beyond that, though,they shook hands and agreed that for the next several years, neither party will attempt to change the filibuster rules on a majority-vote basis — what’s known as the “Constitutional option.”

Under these circumstances, Harkin has given up hope that the Senate will ever reassess itself, and is looking to the courts to step in and shake things up.

“It’s clear now that the Senate can not change its rules,” Harkin told me in an interview Thursday evening. “It can not.”

There’s a strong chance that the courts would refuse to hear a case like this. But Harkin believes the issue is justiciable.

“Most people would say, well the courts won’t handle it because it’s a political question. But I think in this instance it’s more than a political question — it’s a Constitutional question,” he said. “I’m looking at that. I’m working on some things right now. But I wanted to do this first obviously to see whether or not it was still possible. I don’t think it’s possible.”

In 1995, shortly after Democrats lost control of Congress, a younger Harkin launched an effort to take much of his own power away. Joining him, strange as it may seem now, was Sen. Joe Lieberman (I-CT) — then a member in good standing of the Democratic party. The two of them argued, against their immediate interests, that the Senate rules were anti-democratic, possibly unconstitutional, and that they allowed, in practice, even a lazy minority to foil the efforts of a resolute 51 members. Harkin predicted that the rules as written, and the incentives they created, would lead to the escalation and abuse of the filibuster.

The two were defeated resoundingly. Republicans, who would have been the immediate beneficiaries of the proposal, teamed up with most Democrats to knock them down. Since then, as predicted, the use of the filibuster has skyrocketed. Lieberman has grown cozier with it, but Harkin has kept the faith.

This week’s Reid-McConnell agreement — that neither this Congress nor the next one will invoke the Constitutional option — is peculiar. Any individual Senator can decide to to touch off that process if he or she is so determined. What Reid and McConnell have agreed, in essence, is to twist arms and throw up hurdles to prevent their own members from going rogue.

“It has no force in effect,” Harkin said. “It has no force in effect on anyone around here, that’s just their agreement. It’s like any of those other kinds of gentleman’s agreements around here — some little thing can happen that will change how they view it, for example. So it’s nice to have that agreement but it doesn’t mean anything.”

At a Democratic caucus meeting Tuesday, though, Reid proved he has the power to make good on the agreement. A few hours after it ended, Udall, Merkley and their supporters dropped their effort. On Thursday evening, the Senate agreed to make three small changes to the rules, all of which required 67 votes. Asked afterward how he’d stop future senators from trying to shake things up again, Reid said, “They were stopped today, weren’t they?”

Udall and Merkley proposed, among other things, to force filibustering senators to hold the floor and talk. Once they dropped the Constitutional option, that proposal, like all rules change proposals, required 67 votes, not 51. They got 44. Harry Reid wasn’t one of them.

In exchange, the Senate agreed to ban secret holds and to waive, under certain circumstances, the forced reading of amendments. They also agreed that several hundred mid-level executive-branch positions would no longer require Senate confirmation.

That’s not good enough for Harkin, who insists a simple majority should ultimately be able to pass legislation in all circumstances.

“[W]e are locked into a system that denies me my Constitutional obligation to serve my constituents,” he said.

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