Brian Beutler January 6, 2011, 9:25 AM

A provision in a new package of Senate filibuster reforms meant to protect the minority from the majority’s power has supporters both on and off the Hill nervous about its potential to invite poison pills.

One of the GOP’s main criticisms of Harry Reid’s leadership is that he too often “fills the amendment tree,” which essentially eliminates the minority’s power to offer amendments. To address that, reform leaders Sens. Tom Udall (D-NM) and Jeff Merkley (D-OR) included a measure in their rules package that would have guaranteed the majority and the minority votes on three germane amendments, regardless of whether the “amendment tree” was otherwise filled.

Here’s the issue: the reform proposal limits debate on those amendments to one hour, making it incompatible with the filibuster. All of those amendments would live or die by majority rule. In fact, it’s the only part of the rules reform that guarantees any legislation will receive an up or down vote.

“If there’s a one hour debate limit, they’re not subject to filibuster,” says David Waldman, a reform proponent and expert on Senate procedure. “They’d have to get an up or down vote (of one kind or another) after an hour, because there’s nothing else to do with them once the hour runs out. They’d have to be disposed of in some way.”

Some reform supporters are concerned that an aggressive minority would use that power to introduce poison pill amendments as a matter of routine — health care repeal, say, to a bill the majority otherwise wants or needs to pass. More politically, they worry that a small Republican majority would circumvent the talking filibuster provisions to pass something like a health care repeal by introducing it late in the game as an amendment to broader legislation. After all, the rules package was designed explicitly not to eliminate the 60 vote requirement.

As long as they’re germane, these amendments would either pass, fail, or be tabled.

“Would it be a poison pill recipe?” Waldman asks. “Yes it would…. But it’d also mean an opportunity for progressive amendments from the majority side that often get squeezed out too. And of course, everyone gets a straight-up, yes-or-no vote.”

Not everyone’s so sanguine.

Republicans will probably have a good laugh at the idea that filibuster reformers are suddenly recoiling from their own plan. But it’s an interesting test case for whether they think the rules are so broken that they need to be changed in ways that could truly disadvantage them in the minority.

Filibuster, Filibuster Reform, Health Care, Jeff Merkley , Repealing health care, Tom Udall