One of the biggest positive changes that the 113th Congress could make isn’t a law that would affect us directly—it’s a change to the rules of how the Senate does business. We need to end the abuse of the filibuster and let the Senate do its job.
The filibuster has gone from a rare event to a regular one in recent years, as this chart shows:
This has consequences: it’s very easy to point to key laws on health care, collective bargaining, campaign finance and job creation that would have passed without the filibuster.
Fortunately, we’ve seen a new energy around reforming Senate rules. Leading the way are two western Senators first elected in 2008: Jeff Merkley of Oregon and Tom Udall of New Mexico. Late last year, Merkley sent a memo to his fellow Senators laying out a detailed plan to reform the filibuster, and he’s been gathering support from his colleagues in recent weeks. As Merkley puts it, the routine use of the filibuster has increased rapidly in recent years, eroding the ability of the Senate to do anything:
Since each filibuster can take a week of the Senate’s time (two days for the motion to “ripen” and 30 hours of post-cloture debate), multiple filibusters eat up the Senate’s calendar, making it impossible for the Senate to address important business.
This paralysis is unacceptable. The abuse of the filibuster is deeply damaging the Senate’s ability to fulfill its responsibilities. Nominations for the executive and judicial branches are backlogged. Few of the traditional appropriation bills are debated and decided. Numerous important policy bills developed in committees to address major issues facing America never make it to the Senate floor for debate.
Not only can this weapon be utilized with little investment of time and energy, but the leadership of the minority can obstruct the Senate while escaping public accountability.
The point Merkley makes about floor time here is critical. Even when a bill or nomination has enough support to get through a cloture vote, the very fact of having to go through the vote takes up a week of floor time, which isn’t exactly a commodity you can just make more of. When you consider the numbing list of hundreds of presidentially-appointed positions requiring a Senate vote, it becomes very clear that it’s unsustainable to require days upon days for every vote—and that’s not even getting into legislation. Indeed, this is part of the point of the abuse of the filibuster: it makes basic governing incredibly difficult.
Merkley’s reform starts with a simple proposition—if the minority wants to filibuster a bill, the burden is on them to round up the votes and hold the floor, rather than requiring the majority to reach the cloture threshold. You can find more details on Merkley and Udall’s proposed changes here.
As often happens in Washington, once a genuinely useful reform gets offered, along comes someone who doesn’t want reform to come up with a proposal that sounds like a compromise but actually maintains the broken status quo. In this case Sens. John McCain and Carl Levin are the ones offering a toothless compromise proposal. As David Dayen writes, this isn’t a reform that would fix what’s wrong:
A close reading of the McCain-Levin reform proposal shows it would actually do nothing, if not actively harm the ability of the Senate to do its business…McCain-Levin offers almost no substantive change from the current status quo in the Senate…It would not stop needless obstruction of conference committee motions or Senate confirmations. It would not come close to ending the silent filibuster, where the minority can block legislation without exposing their reasons to public scrutiny.
Merkley says that there are, indeed 51 votes for his package of filibuster reforms. That’s a close margin, but a winning one. Some kind of reform is likely, but the question is whether it’s reform with teeth—like Merkley’s—or a change that doesn’t have much effect. Senators need to hear from you—especially Levin, a Michigan Democrat who says he opposes the Merkley proposal.