Is It Finally Time to Reform the Filibuster?

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The state of Oregon does a helluva job electing senators. We should all be so lucky to have the likes of Ron Wyden and Jeff Merkley representing us.

Today I want to highlight Merkley and his proposal to end abuse of the filibuster. Unlike his retiring Connecticut colleague Chris Dodd, who inexplicably decided to use his farewell address this week to produce a defense of the filibuster that could only come from a DC lifer almost comically out of tune with the events of the past few years, Merkley has given the subject some real thought and recently produced some genuinely sharp thinking about it.

For starters, Merkley understands the reality of the modern Republican Party: they don’t use the filibuster occasionally to obstruct legislation they feel especially strongly about, they use it “on nearly a daily basis, paralyzing the Senate.” What’s more, the filibuster isn’t just a way of requiring 60 votes to pass legislation. Rather, “the filibuster can be thought of as the power of a single senator to object to the regular order of Senate deliberations, thereby invoking a special order that requires a supermajority and a week delay for a vote.”

This is a key point to understand. The modern filibuster requires only one person to invoke it, doesn’t require that person to do anything other than announce his intent, and automatically eats up a week or more of time on the Senate calendar even on legislation that’s widely popular. Last year, for example, it took the Senate five weeks to approve an extension of unemployment benefits that eventually passed 98-0.

But what to do? There’s some question about whether Senate rules can be changed in the middle of a session, but none about whether they can be changed at the beginning of a session. They can be. So in January, if Democrats can muster 51 votes and Vice President Biden is willing to support them by issuing friendly rulings as presiding officer, the filibuster rules can be changed. So what would it take to persuade 51 Democrats to go along?

Merkley’s proposal revolves around a single principle: the Senate should always allow debate. So the filibuster should be banned entirely on motions to proceed and on amendments because both are things that promote debate and engagement. Filibusters would still be allowed on a bill’s final vote, but it would take more than one senator to launch a filibuster (Merkley suggests a minimum of ten) and senators would have to actually hold the floor and talk. No longer would a single person be able to obstruct all business just by dropping a note to his party leader.

And in return? The minority party would have one of its major grievances addressed: the ability to offer amendments to legislation. Merkley proposes that unless a different agreement is reached prior to a bill coming to the floor, each side would be allowed to introduce five amendments of their own choosing. No longer could the majority leader “fill the amendment tree” or otherwise prohibit the minority party from trying to amend legislation. This fits with his broad principle that debate and engagement with legislation is a good thing. The minority party might choose to offer mischevious or blatantly political amendments, but that’s their choice. They also have the choice of genuinely trying to improve legislation and getting a majority of their colleagues to pass it.

Merkley has a few other proposals as well, but this is the gist of it. It’s a pretty good plan, and a pretty sensible one. It doesn’t eliminate the filibuster, it just eliminates filibuster abuse. And in return, the minority party gets an expanded ability to engage in a positive way with any legislation on the floor. In January, the Democratic leadership, the rank-and-file of the party, and the White House ought to give serious thought to starting the 112th Congress with the long-overdue reforms that Merkley proposes.

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We've never been very good at being conservative.

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This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

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