Unlike many of his older colleagues, who have been serving in the Senate since dinosaurs roamed the earth, Sen. Jeff Merkley (D-Ore.) and some of his freshman colleagues — notably New Mexico’s Tom Udall (D) — are not so enamored of Senate mythology that they are blind to the dysfunction unspooling before their eyes. Ever since he was elected to the Senate in 2008, Merkley has been an insistent and occasionally impatient voice for reform, especially focused on the filibuster, which imposes a de facto 60-vote supermajority requirement on all Senate business (and is terrible in a whole variety of ways).
Merkley and Udall made a bid at reforming Senate rules in 2010, but it foundered. Now talk of filibuster reform is back with a vengeance. Senate Majority Leader Harry Reid (D-Nev.) has expressed support. So has President Obama. So has new Senate superstar Elizabeth Warren (D-Mass.). So has a coalition of unions and green groups. Minority leader and master of obstruction Mitch McConnell (R-Ky.) is nervous and blustering.
I chatted with Merkley about the nature of the proposed reforms and their chances of success. Among other things, he wanted me to remind you that reform goes much more smoothly when the public voices its support, and you can do just that at ReformtheFilibuster.com.
Q. We talked two years ago about an effort at filibuster reform that ended up coming to nothing. What are the chances of it actually happening this time?
A. Much improved. Two years ago, when Tom Udall and I put forward a package of reforms, we had 46 senators vote for it — without the support of our majority leader. The majority leader recently said, “You know what, two years ago I said we can resolve these issues through a gentlemen’s agreement. Now I recognize it cannot be done that way and I support changing the rules.” I mean, he’s really jumped into the fray. He’s gone to the floor three or four times to talk about the fact we’re going to have to change the rules.
Look, are we just going to accept a broken Senate that can’t deliberate, can’t debate, can’t decide? Is that acceptable, given our responsibility to the American people? I think after the last two years, after the worst legislative session in U.S. history, they’ll say, “No, the abuse is so extensive it must be addressed.”
Q. Is it too early to say what will be in the package this time?
A. Absolutely, but I can give you examples of the ideas being considered.
One is about [filibustering] the motion to proceed. In that situation, a filibuster is about preventing debate, not putting forward the views of the minority. It’s inconsistent with the [Senate’s] vision of unlimited debate.
The second is the path to conference committee. You only go to conference committee if both houses have passed the bill. Why would there be any obstruction? And yet, the use of filibusters on motions to get to conference committee have resulted in the Senate essentially giving up on them. Occasionally, you’ll see one — we had one on Dodd-Frank — but they’re very rare. It should be easy to get to conference. Filibustering the path to conference is just a pure, pointless form of paralysis.
The third is [requiring] the talking filibuster: If people we want to keep debating, they have to debate. This does a couple things. First, it takes time and energy. And second, you go before your colleagues and the American people and say, “Here is my argument.” They get to judge whether you’re a hero or a bum. That creates a feedback loop, because citizens can see what’s happening. That’s transparency and accountability for members. They can’t obstruct without accountability if there’s a talking filibuster.
Q. Isn’t the minority mostly filibustering things their base opposes anyway? Why would they care if it was public?
A. That’s a wrong assumption. Let me give you an example: the DISCLOSE Act. In 2010, if Republicans had had to say, “We are standing up through tonight, through tomorrow night, through the weekend, to protect the secrecy of campaign donations,” there would have been a public response. We would have gotten some of the senators to join us. But as long as just one person has to object to a simple majority, and nobody has to take the floor, then they just don’t see any public pushback.
Mitch McConnell has been able to paralyze the Senate without the public understanding why. So the public keeps saying, “The Democrats are in charge, why aren’t you getting anything done?” And we say, “Well, the Republicans are filibustering everything. Harry Reid, in six years as Democratic leader, has faced 386 filibusters.” Our constituents say, “We don’t see the Republicans filibustering. What are you talking about? Why don’t you make them talk?”
Listen, I’ll be the first to say a talking filibuster is not a silver bullet. I know the majority leader’s talked about efficiency, but to me, a talking filibuster can be very inefficient. But at least it means you’re killing a bill in the light of day, and there’s a chance that citizens can weigh in and respond, either directly or when election time comes. Whereas now, there’s no accountability. With a talking filibuster, the frivolous filibusters that are obstructing us will be much less likely.
Q. I’ve also heard some skepticism about blocking filibusters on the motion to proceed. The minority wouldn’t filibuster a motion to proceed unless it was prepared to filibuster the bill itself, right? So bills that would have been blocked will still be blocked.
A. Filibusters are often aimed simply at slowing down the Senate.
So, here comes a bill. First comes a filibuster on the motion to proceed. Finally you break that and get the bill to the floor. Then there’s an amendment, and a filibuster on that. Then there’s a filibuster on the bill itself. Then there’s an effort to get it into committee and a filibuster on that (actually, up to three). Then it’s out of committee to the final vote on the conference committee report, and there’s another filibuster.
So there are all these hurdles. Now, getting rid of a couple of the hurdles doesn’t eliminate all of them. In that sense, the point you’re making is absolutely right. But on the other hand, it gets rid of one on the front end, the motion to proceed, and three in the middle, on getting to conference committee. So you’re left with the amendment, a bill, and a conference report as the three points that can be filibustered. It’s a modest improvement — not as dramatic as getting rid of the filibuster.
At this moment, senators are very nervous about making changes. They’re nervous about being in the minority in the future. So to do these three things, people have to be brought around to the notion that you can take modest steps and the world will not end. If two years from now, these modest changes weren’t enough, we’ll get another chance to make some other modest changes.
There are some other ideas around. Al Franken (D-Minn.) has a terrific idea: He has proposed that, instead of requiring 60 votes to end debate, require 41 to extend debate. If you have senators who are missing now, they count as automatic no votes — automatic votes in favor of continuing debate. But if you have to get 41 votes to continue debate, those missing votes count on the side of “OK, let’s wrap things up.”
Q. Do you think that’s likely to be involved in this round?
A. I think it’s a great idea and I know a number of my colleagues do too. It’ll be part of the conversation. As to whether it will get adopted into a package, that’s yet to be determined.
Q. If it were up to you, would you want the Senate to be a majority body, would you want to get rid of the filibuster entirely?
A. No, I wouldn’t get rid of it entirely. If you’re willing to make your case in front of the public and can keep 41 folks in support of your effort to do that, that is acceptable to me.
Q. Do you have to make these changes on the first day of the session, or is that a myth?
A. Constitutionally, you can make rule changes anytime. Article 1-5 of the Constitution says we can organize ourselves; it doesn’t say we have to set our rules on day one.
But by tradition, it is a debate that happens at the start of a two-year period. That is the moment when you have the political momentum to carry this debate.
Q. Three different things get filibustered: legislation, judicial nominations, and executive branch nominations. The justification for the filibuster seems much weaker for the latter two, especially executive branch appointments. Is there any talk of breaking those out and treating them separately?
A. I haven’t heard anybody lay it out in that manner, but there is a lot of discussion about the fact that this reverberates differently in the different branches. Advise and consent was never meant to be a way for the legislative branch to damage the judicial and the executive. There should be a pretty high bar for preventing the president from putting his team together. Unfortunately, the opposing party has taken to saying, “We’re going to do all we can to undermine this president. He’s not our president, he’s the Democrats’ president.” That is not the way we should look at things in America.
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