Dems United on Filibuster Reform, Follow Merkley's Plan

Jeff Alworth

As the most-surprising, least lame lame-duck session in memory winds down, the Dems save their biggest surprise for last. Every single returning Democrat has signed a letter demanding change to Senate filibuster rules.

The letter, delivered this week, expresses general frustration with what Democrats consider unprecedented obstruction and asks Reid to take steps to end those abuses.... The fact that every returning Democrat signed the letter circulated by Sens. Carl Levin, D-Mich., and Mark Warner, D-Va., urging changes underscores growing determination on the part of the Senate’s majority to raise the bars for filibusters.

Ezra Klein details the contours of the bill, which appear to follow Jeff Merkley's proposals:

[T]he basic outline looks to take its cues from Sen. Jeff Merkley's proposal: Filibusters would require continuous debate on the floor of the Senate, and they would only be allowed once the bill is on the floor (no more filibustering the motion to debate a bill, for instance). Democrats would also like to see the dead time between calling for a vote to break a filibuster and actually taking the vote reduced.

The Senate is so heavily larded with byzantine rules, that there are lots of ways to kill legislation--but the easiest is to let bills die from time-starvation:

While many Americans understand that you need 60 votes to break a filibuster, relatively few realize that you need about a week of floor time on the Senate to even take those votes -- and the minority has been quick to understand that time is precious in the modern Senate, and so the mere threat of a filibuster on less-pressing items like nominations is enough to stop them cold. It's not that Reid doesn't have 60 votes to break the filibuster, but that he doesn't have a week to spend doing it.

I'd add that this may not be the revolutionary change it looks like. The Senate has long functioned along the lines of courtly detente--although rules allow the minority to block or slow legislation, parties have been reluctant to deploy every trick at their disposal. Since power shifts back and forth, Senators in the minority have not wanted to create precedents that would further erode their power in the majority. That all changed in the last four years, as the GOP used the filibuster and the practice of secret holds--both targets of Merkley's plan--to tie up work in the Senate. Many times, legislation that would pass by huge majorities--like the recent START treaty--get killed before the GOP have to vote. And Obama's nominees for executive and judicial appointments have been stalled in shocking, record fashion. So these changes won't tip the scale back toward the Dems; it will tip the scales back toward the former levels of majority/minority balance.

If they do manage to hold together and make these changes, we'll have seen the wisdom of exchanging Jeff Merkley for Gordon Smith quite quickly (in Senate years).

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    Serving in the Senate requires discipline and high-stakes testing for changing the current filibuster behavior. Senator Merkley's positive contribution to the Senate is just plain good smart work. May the days of the secret hold and filibusters requiring 60 votes end soon.

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    Atta boy, Jeff. Your strategic thinking and hard work have disproved the old adage that a new senator has to sit around powerless for years in that august chamber, listening to the old boys blather on--

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    sen. Merkley explains some of his thinking on this...

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      You can learn more about Jeff Merkley's thinking by going to his website - where you can also sign on to a petition for filibuster reform. Demonstrating grassroots support will be critical to persuading more Senators - and more importantly now, holding everyone in line.

      Full disclosure: I built Jeff Merkley's website. I speak only for myself.

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    Question: Does a change in Senate rules on the filibuster require a super-majority or a simple majority? As I recall when the GOP wanted to implement the "nuclear option" they were prepared to simply call a " point of order" and change the rules with 51 votes.

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    Under the Constitution, adopting new rules - including a new rule on the filibuster, require only a simple majority. As a result, changing the filibuster couldn’t be filibustered.

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      Well, at least, that's the argument that's being put forth.

      Others have argued that the Senate is a continuing body - unlike the House - and thus the previous session's rules still apply.

      Ultimately, it's going to come down to a ruling from the parliamentarian - or maybe the senior-most member or President of the Senate (I can't recall which.)

      There were some hearings earlier this year to attempt to nail that all down - pointing out some (incomplete) precedents from the 1970s that folks thought would apply. IIRC, Walter Mondale even showed up to testify.

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      If so, there is nothing to stop the Dems from now changing the filibuster rules without a single GOP vote.

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    So, if Mark is correct, the filibuster is yet another item the supermajority dems could have addressed; yet failed to do so.

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    I'm pretty sure filibusters are irrelevant on the issue of nominations. Filibuster reform would not impact the rules that allow a single senator to put a hold on a single nomination, or as we saw this year with Senator Shelby,all of them.

    That said, my (admittedly unimportant) estimation of Senator Merkley is rising rapidly.

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      Actually, this too is being considered as one of the possible rule changes for the next session - anonymous holds. The rule change proposed would require senators placing a hold to be identified.

      There will be a lot of give and take as the Senate considers possible rule changes.

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        Yup, but please note the operational word is "anonymous." Allowing a single Senator to block any and all nominations indefinitely will continue and in a Senate where Republicans have no shame...

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    Mark, there are no "Constitutional" provisions regarding the internal rules of procedure for the Senate. The only constitutional provision (besides various policy responsibilities and qualifications for election) has to do with the quorum requirement (Art 1, Sect 5).

    The current requirement, as I understand it, is that the vote to change the filibuster would be a majority rule vote, but any procedural motions to move to a vote are subject to a filibuster, thus in practice subjecting the filibuster vote itself to a filibuster.

    Complicated enough for you? Put simply, you can't vote on something in Congress unless the question is called, and the motion to call the question--separate from the vote itself--is subject to normal rules of procedure.

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    I have sought, without success, to find what Jeff is actually proposing. Where is the bill?

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