JANUARY 30, 2024 (prospect.org)<\/p>\n\n\n\n
![\"Dayen-Merkley](\"https:\/\/prospect.org\/downloads\/20734\/download\/Dayen-Merkley%20book%20013024.jpg?cb=2df90faa173b4aa8b59b0635db4a76d5\")
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FRANCIS CHUNG\/POLITICO VIA AP IMAGES<\/p>\n\n\n\n
Sen. Jeff Merkley (D-OR) speaks during a press conference at the U.S. Capitol, May 3, 2023.<\/p>\n\n\n\n
https:\/\/trinitymedia.ai\/player\/trinity-player.php?pageURL=https%3A%2F%2Fprospect.org%2Fpolitics%2F2024-01-30-jeff-merkley-vs-senate%2F&GDPR=%24%24GDPR_MACRO%24%24&GDPR_CONSENT=%24%24GDPR_CONSENT_MACRO%24%24&unitId=2900001720&userId=f4795377-96a7-4254-9325-4998373490a9&isLegacyBrowser=false&isPartitioningSupport=1&version=20240131_b48f1b70a17b6aea9dd3cf4cb1c2d7ffdacca978&useBunnyCDN=0&themeId=140<\/p>\n\n\n\n
In the fall of 2009, I scheduled a call with a freshman senator to talk about his vote against Ben Bernanke for another term as Federal Reserve chair. During the call, he made a reference to \u201cprocedural difficulties\u201d when talking about the Affordable Care Act. I picked up on that: \u201cYou\u2019ve been in the Senate a year now. How do you think the process works?\u201d<\/p>\n\n\n\n
\u201cThere\u2019s no question that the Senate has become dysfunctional, and it\u2019s not good for democracy,\u201d Sen. Jeff Merkley (D-OR) replied<\/a>. At that moment, interestingly enough, Democrats had 60 votes in the Senate<\/a>. But even with enough votes to close debate on any policy bill, the process didn\u2019t work, because the rules of the Senate gave the minority party so many tools to obstruct. Barely anything made the Senate floor, amendments were almost nonexistent because they required unanimous consent, hundreds of executive branch positions were unfilled, and most of a senator\u2019s business involved waiting around, even with a supermajority.<\/p>\n\n\n\n More from David Dayen<\/a><\/em><\/strong><\/p>\n\n\n\n Last week, Merkley, who has a new book out called Filibustered!: How to Fix the Broken Senate and Save America<\/a><\/em>, told me that he wouldn\u2019t even have known that another option was possible if he hadn\u2019t served as an intern in Sen. Mark Hatfield\u2019s office while in college. His job was to follow the floor debate for the Tax Reform Act of 1976. In an era before cameras and cellphones, Merkley had to watch the proceedings from the Senate gallery, run downstairs to brief Hatfield on amendment votes, and run back to the gallery to keep watching. He witnessed 125 amendments, all conducted on a majority-vote basis, in a few days. Senators debated a bill, tried to shape it, and then took an up-or-down vote on the overall legislation.<\/p>\n\n\n\n Merkley has spent the past 15 years trying to get the Senate back to that state. If the stars align, next year could be the culmination of what can now be considered his life\u2019s work. Filibustered! <\/em>(co-written with Merkley\u2019s chief of staff Mike Zamore) is the definitive document of that struggle. It reads like the work of someone who has finely honed his arguments through rhetorical combat with his fellow senators. It\u2019s full of great history and myth-busting, and an arsenal of explanations for why ending the filibuster as we know it would limit corruption, give all senators a voice in policymaking, and bring coherence to American democracy, instead of the alienation-producing machine we have now.<\/p>\n\n\n\n \u201cWhen we have people coming to Capitol Hill who work on democracy issues,\u201d Merkley said in an interview, \u201cI say, \u2018Your presentation is missing two critical words: filibuster reform.\u2019\u201d<\/p>\n\n\n\n AS I WROTE IN MY JAUNDICE-EYED LOOK AT AMERICAN DEMOCRACY<\/a><\/strong>, voters have flipped at least one chamber of Congress or the presidency in eight of the last nine elections. Yet they almost never get the results they assume that change would lead to, and a large reason why is the filibuster. \u201cIt\u2019s a formula for frustration and cynicism and the appeal of an authoritarian government,\u201d Merkley said. \u201cThe whole premise of democracy is if you fight for your beliefs and earn a majority you can put your policies in place. It becomes a national experiment. If it\u2019s good voters will reward you, if it\u2019s a dud it\u2019ll get changed in the next cycle.\u201d<\/p>\n\n\n\n We have no ability to conduct such experiments, because of the minority veto. And while I fault the Founding Fathers for much of the imperfections of our democracy, they did not intend to create a legislative body that could literally not express the will of the majority.<\/p>\n\n\n\n As Merkley explained, \u201cBefore we had the current constitution, we had the Articles of Confederation and Confederated Congress,\u201d which needed nine of the 13 states to agree to exercise its limited powers. \u201cWhen they tried to raise funds to pay pensions after the Revolutionary War, they couldn\u2019t do it. When they tried to raise funds to put down Shays\u2019 Rebellion, they couldn\u2019t do it.\u201d<\/p>\n\n\n\n The Congress created by the Constitution was explicitly designed to not<\/em> be hamstrung by the minority. The framers specified what types of actions would need a supermajority\u2014treaties, impeachment, constitutional amendments, and expulsion of a member. James Madison wrote in Federalist No. 58<\/a><\/em> that a supermajority vote for all policies would mean that \u201cthe fundamental principle of a free government would be reversed \u2026 the power would be transferred to the minority.\u201d<\/p>\n\n\n\n \u201cThe early Senate had so many tools to make sure neither lengthy speeches nor filibuster-style obstruction would prevent the will of the Senate to go forward,\u201d Merkley said. The biggest of those tools\u2014the \u201cmotion on the previous question,\u201d the mechanism by which the House closes debate and votes\u2014was scribbled out of the Senate rules by a fastidious vice president, Aaron Burr, in 1805, because the Senate operated with such comity in those days (what Merkley calls \u201cthe Senate code\u201d) that such a motion was never used.<\/p>\n\n\n\n The Founding Fathers did not intend to create a legislative body that could literally not express the will of the majority.<\/p>\n<\/blockquote>\n\n\n\n Even in the years between 1917 and 1964, a cloture vote, which cuts off debate, was voted on only six times, Merkley said. The filibuster was largely reserved for blocking civil rights legislation, which on its face should tell you something about the tool and who it serves. But today, thanks to growing ideological sorting and the ease with which the minority can obstruct, every single bill gets filibustered, usually twice (on the motion to proceed to debate and the motion to end debate).<\/p>\n\n\n\n A successful fight to lower the threshold for cloture in 1975\u2014an attempt to make the Senate work better\u2014actually made things worse. Then-Sen. Walter Mondale (D-MN) agreed to make the threshold three-fifths of all senators, rather than three-fifths of votes cast. This means that a 59-0 cloture vote in the Senate loses, and it allowed obstructionists to filibuster without lifting a finger. The filibuster went underground, with only the majority burdened by rounding up votes. The public doesn\u2019t know there\u2019s a debate going on; they just see nothing getting done.<\/p>\n\n\n\n Because of time allotments built into the rules, each cloture vote can take up to a week. There\u2019s a tremendous amount of self-censorship in the Senate, where overwhelmingly bipartisan measures cannot get onto the floor because they would take too long. The path of least resistance is to do nothing\u2014or, because of reforms passed in 2013, to do executive branch and judicial appointments that can still take a while but at least ultimately get a majority vote.<\/p>\n\n\n\n This robs a Senate majority of the ability to inspire their base by getting things passed. You don\u2019t see the Democratic agenda reflected in Senate legislation this Congress, because it\u2019s too time-consuming. This makes the majority look weak and ineffectual, and disconnects the relationship between elections and governing.<\/p>\n\n\n\n Merkley notes that amendments, which can also be filibustered, have practically vanished in the current Senate. \u201cThe ability to offer amendments means the powerful cannot hide,\u201d Merkley told me. \u201cNow it\u2019s the reverse.\u201d He explained that, under the unanimous-consent rules, amendments that would lead to uncomfortable votes are routinely blocked. That puts legislation largely in control of leadership, who dictates what goes to the floor in backroom deals. \u201cWhich means the majority and minority leaders can tell those powerful interests, \u2018Give us lots of money and we\u2019ll get your policy into the bill.\u2019\u201d The Senate rules, in other words, facilitate corruption.<\/p>\n\n\n\n The priorities of Republicans and Democrats mean that the rules work differently for each party. Merkley tells a story about budget reconciliation, a 1974 rule that created an exemption to the Senate supermajority for deficit reduction. It was twisted by the Gingrich-era Congress into something that can be used for tax cuts. (A former Bob Dole staffer named Robert Dove, who became the Senate parliamentarian, approved that change.) \u201cIt\u2019s possible for Republicans to do tax breaks by simple majority, but they still maintain a veto over health care, housing, education, labor, civil rights, voting rights, and climate policy,\u201d Merkley said. \u201cTalk about a system rigged for the powerful.\u201d<\/p>\n\n\n\n MERKLEY\u2019S REFORMS WOULD END THE \u201cDISILLUSIONMENT FACTORY\u201d<\/strong> that is the modern Senate. He would eliminate the painless filibuster that just sets a 60-vote threshold for practically everything, and institute a talking filibuster, forcing the minority to make the effort to hold the floor in full view of the public, without being able to use dilatory tactics, before taking an up-or-down vote. Senators would have leverage but not a veto. He would also end the ability to filibuster the motion to proceed\u2014which is just a way to begin debate on a bill\u2014and guarantee ten germane amendments, five for each party. He would save time by ending cloture votes for nominations and moving directly to an up-or-down vote, while cutting the two days it takes for a cloture motion to \u201cripen\u201d and post-cloture time. Unclogging Senate procedure would allow more time for critical priorities, and quickly pass bills that have broad bipartisan support.<\/p>\n\n\n\n Because the House and Senate are divided, we haven\u2019t heard a lot lately about the filibuster. But we should hear about it this and every election year, as Democratic politicians make their pitches to the public. President Biden recently said<\/a> at a rally, \u201cGive me a Democratic House of Representatives and a bigger Democratic Senate, and we will pass a new law to restore and protect Roe v. Wade<\/em>.\u201d He knows that cannot get done without filibuster reform. Yet the public continues to receive promises that do not lead to results, and those making the promises continue to expect people to believe in democracy.<\/p>\n\n\n\n \u201cI was at a campaign event hosted by John Legend,\u201d Merkley told me. \u201cAfter the two folks up for election gave policy presentations, John Legend got up and he said, \u2018How are you going to get these policies passed given the filibuster?\u2019 I hope for every Democrat to get that question.\u201d<\/p>\n\n\n\n Merkley has dealt with institutional resistance to fixing the Senate from the day he got there. But the sharpness on display in his book has broken that resistance down. In 2022, his proposal for a talking filibuster\u2014the first actual debate on the matter in history\u2014got 48 votes. Since then, John Fetterman, an avowed supporter of filibuster reform, makes it 49. If Joe Manchin and Kyrsten Sinema, the only no votes to Merkley\u2019s proposal, are out of the Senate next year and Democrats still have a majority\u2014a tall order, as Merkley conceded\u2014with a Democratic House and president, they will probably have enough support to change the Senate, and by extension change America.<\/p>\n\n\n\n Said Merkley of the opportunity: \u201cI\u2019m going to work like hell.\u201d<\/p>\n\n\n\n Correction: A previous version of this story said that Alan Frumin was the parliamentarian who allowed tax cuts under budget reconciliation rules. It has been corrected to reflect that it was Robert Dove.<\/em><\/a><\/p>\n\n\n\n David Dayen is the Prospect\u2019s executive editor. His work has appeared in The Intercept, The New Republic, HuffPost, The Washington Post, the Los Angeles Times, and more. His most recent book is \u2018Monopolized: Life in the Age of Corporate Power.\u2019<\/p>\n","protected":false},"excerpt":{"rendered":" The Oregon senator\u2019s new book harnesses 15 years of fighting to end the filibuster. BY DAVID DAYEN JANUARY 30, 2024 (prospect.org) FRANCIS CHUNG\/POLITICO VIA AP IMAGES Sen. Jeff Merkley (D-OR) speaks during a press conference at the U.S. Capitol, May 3, 2023. https:\/\/trinitymedia.ai\/player\/trinity-player.php?pageURL=https%3A%2F%2Fprospect.org%2Fpolitics%2F2024-01-30-jeff-merkley-vs-senate%2F&GDPR=%24%24GDPR_MACRO%24%24&GDPR_CONSENT=%24%24GDPR_CONSENT_MACRO%24%24&unitId=2900001720&userId=f4795377-96a7-4254-9325-4998373490a9&isLegacyBrowser=false&isPartitioningSupport=1&version=20240131_b48f1b70a17b6aea9dd3cf4cb1c2d7ffdacca978&useBunnyCDN=0&themeId=140 In the fall of 2009, I scheduled a… Continue reading \n
DAVID DAYEN<\/a><\/h3>\n\n\n\n