Oregon’s Senator Jeff Merkley Threads the Filibuster Reform Needle

Jeff Merkley (D-OR), my junior Senator, has come up with a plan to solve the filibuster problem in the United States Senate in a good way! He proceeds from the assumption that it’s not actually impossible to make Senators filibuster by appearing on the Senate floor:

The public believes that filibustering senators have to hold the floor. Indeed, the public perceives the filibuster as an act of principled public courage and sacrifice. Let’s make it so.

Require a specific number of Senators — I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter — to be on the floor to sustain the filibuster. This would be required even during quorum calls. At any point, a member could call for a count of the senators on the floor who stand in opposition to the regular order, and if the count falls below the required level, the regular order prevails and a majority vote is held.

Sustained, continued opposition is how the American public understands the Senate filibuster. Nowadays, lone Senators allow their colleagues to hide behind the threat of a filibuster. The filibuster in its current form also empowers a secretive majority that doesn’t want to expose its own members more likely to vote with the filibustering minority.

Under Merkley’s proposed change, if a party or group of Senators oppose bringing a bill to the floor for debate — or opposes ending debate — they will have to sustain continued opposition on the floor of the Senate. If they don’t, the filibuster collapses. The idea is to force the filibuster out into the light of day, where the public can see what’s happening.

Merkley’s office believes such a change to the rules could be accomplished with a simple majority vote in the Senate, and Merkley will be pushing colleagues to join his effort to make such a vote happen at the outset of the new session in January. Read his full memo here.

Mitch McConnell and his 41 Dwarfs may have, in their absolute-obstruction letter yesterday, moved Senator Merkley’s reform along in ways they could not have imagined.  . . .

Mitch McConnell’s threat to filibuster literally everything Democrats want to do until Democrats and Republicans agree to a compromise on the Bush tax cuts can be read as a power play, but it can also be read as a dare: At this point, Republicans are sure that they can abuse the rules as much as they’d like and Democrats won’t dare do a thing about it. McConnell’s blanket filibuster now joins Richard Shelby’s blanket hold as the two most egregious acts of procedural brinkmanship in a Congress that’s been chock-full of rules-based obstruction.

If the Senate is at full-stop, and Senate Democrats can make the American people see that, there may be considerable momentum behind Jeff Merkley’s filibuster reform come January:

Merkley starts with a simple observation: “The Senate’s original commitment to full and open debate has been transformed into an attack designed to paralyze and obstruct the Senate’s ability to function as a legislative body.” That leads to a principle that’s not often associated with reform of the filibuster, but perhaps should be: “Reforms should increase the ability of the minority party to participate in the process. Any approach that fails to take this approach will be viewed as a power grab and will be counterproductive.”

Maintaining — even enhancing — the right of minority party Senators to amend the actual bill under consideration could go a long way toward getting recalcitrant institutional defenders on board with these reforms, since Senate Democrats can see the 2012 election looming. Their majority will be harder than ever to defend, and they won’t do anything to organize their last Senate that might anger the GOP.

Once a filibuster has started, Merkley would like to see it resemble the public conception of the practice. So rather than a private communication between members of the two parties’ leadership teams, it would actually be a floor debate — and a crowded one. The first 24 hours would need five filibustering senators to be present, the second 24 hours would require 10, and after that, the filibuster would require 20 members of the minority on the floor continuously. Meanwhile, there would have to be an ongoing debate: “If a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded and a simple majority vote is held according to further details established in the rules. … Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process.”

Restoring the World’s Greatest Deliberative Body to its status as the World’s Greatest Deliberative Body should appeal to those members of the World’s Greatest Deliberative Body who fear filibuster reform as a debate-ender. Senator Merkley’s proposal is a debate-enhancer.

This is filibuster reform that even the filibuster’s supporters can love: It focuses the practice on the tradition of debate and discussion that Senate traditionalists consider to be the institution’s indispensable trait. Even so, a few days ago, I would’ve told you it didn’t have a chance, as there’d be no energy to look at the rules again. But McConnell’s announcement of a blanket filibuster that’s meant to stop the Senate from debating legislation rather than ensure that all sides have time to be heard may be just the push the traditionalists needed.

David Dayen has a link (pdf) to the Senator’s plan in Thursday’s News Roundup. It’s worth a read; I hope we’ll hear more about it as the new Congress organizes itself shortly after New Years.

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