Sen. Jeff Merkley: 'This isn't a question of filibuster or no filibuster'

By Ezra Klein

Senate Democrats are moving toward some version of filibuster reform. And one of the primary agitators behind that project has been Sen. Jeff Merkley (Ore.). It's his reform proposal -- a modest document that doesn't end the filibuster so much as bring it closer into alignment with what the public already thinks it is -- that many observers think the Democrats will be working off of when they reconvene in early January. We spoke about the issue last week, and an edited transcript of our conversation follows.

Ezra Klein: You're one of the only senators I've seen who's stepped forward and said, "This is one potential route we could take to reform the filibuster." But there's also been some opposition. Chris Dodd devoted his farewell speech to saying that filibuster reform is "unwise." He's obviously been around the Senate for a long time, so what was your take on that?

Jeff Merkley: I did not hear the first half of the speech. I apparently walked in just as he was completing that portion, so I didn't directly react to it. But I think it's important for people to understand that this isn't a question of filibuster or no filibuster, it's about the ability of the minority and the majority to participate in a deliberative process. The filibuster was designed to make sure every member gets to participate and that the minority has a significant role. It wasn't designed to obstruct the deliberative process, and there's nothing about the way that the Senate is operating right now that is consistent with the way the Senate has operated historically.

I always make reference to when I was an intern in '76, and I was working on the Hill in the '80s, the Senate functioned. It doesn't really function now. We didn't pass a budget, we didn't pass any of our appropriations bills. We didn't get to a host of House legislation, we didn't get to a whole lot of nominations to the executive branch and the judicial branch. This is not an acceptable state of affairs.

So if the social contract is broken, the contract that said "I understand that only under the most pressing, important circumstances will I utilize my privilege to delay the Senate and demand a supermajority vote," if that social contract is gone and it's a routine thing because one wants to paralyze the Senate and keep it from operating, then we need to adjust the rules. That doesn't mean we get rid of the filibuster, but it does mean that we should make anyone who wishes to exercise that have to put more energy into it than simply filing an objection and walking away and having dinner while you delay the Senate for a week.

EK: Couldn't somebody say that the reason the budget isn't getting done is that Democrats aren't working with Republicans effectively, that if they gave Republicans more of a chance to be involved from the beginning, if they allowed more open debate and compromised more often, there'd be more bipartisanship? That's certainly the GOP's line, and if you believe it, the idea that the fix for the Senate is to give the majority more power is misguided. Instead, the fix for the Senate is for the majority to stop acting in such a unilateral fashion.

JM: It just doesn't fit the way the Senate's operated the last two years. For example, the conversation about the stimulus, it wasn't the Democrats saying every dollar will go into spending, construction spending, and we won't consider spending on other things that create jobs. There was an openness to the traditional Republican ideas, and a third of the package went to tax cuts and a third went to the states. Everybody's states back home were hurting; that included Democrats and Republicans. It's kind of hard to step aside from that and not see that that was about as bipartisan as you can imagine, the two sides coming together.

The food-safety bill was subject of three filibusters. That's not an issue of grave national security or civil rights. It wasn't even a particularly partisan bill. There were conservatives on both sides, support on both sides, but each one of those objections was done with no pushback from the press, no consequences from other members who wanted to proceed. It's a routine strategy. If you object to everything, then very little will get done when the other guys are in power.

EK: One thing that the public doesn't understand about most filibusters is that they’re not about requiring more votes but about requiring more time. Sen. [Harry] Reid could require more traditional filibusters, which is what your proposal essentially calls for, but he needs to get so much done in such a short period of time that he simply doesn't have the hours to let the minority speak for weeks so he can confirm a judge. This set of filibuster reforms won’t change that calculus, and so it's not clear to me exactly how that problem actually gets solved.

JM: First I would dispute your contention that public filibusters can be done. It cannot be done under the current rules.

When I came to talk to Majority Leader Reid about running for the Senate, I said, by the way, I just have to say this one thing, the folks back home want you to force the Republicans to hold the floor. He grabbed his head and said, "Okay, let me explain how it works. People come to me all the time and tell me exactly the same thing: Force Republicans to hold the floor. But when we think of 'Mr. Smith Goes Washington,' Mr. Smith wasn't up there because he was compelled to hold the floor. Mr. Smith was up there because he wanted to rally the American people against what he thought was a grave injustice." And when the Southern senators during the civil rights era took the floor to say, "We're going to block this bill," they wanted the folks back home to know they were blocking the bill. It wasn't because they were compelled to be on the floor.

So what I'm arguing is that the public does feel like there's something necessary about a person being able to take the floor and make their case to the American people at length. That is part of the culture of the Senate. But it isn't part of the rules of the Senate. My reforms would create a situation where if you want to delay the Senate for a week and force a supermajority, you can't do it on a whim. You're going to have to go to the floor, and you're going to have to defend your position to the American people. The American people are going to be able to respond to it, and you're going to have to spend the time and energy to do that. That's the heart of it.

EK: Maybe I'm wrong that there is a capacity to make the minority hold the floor, even if Reid had the powers and the rules that you would like to see him have, he would not force the minority to hold the floor, because to him, if he can't get the bill through and he gives them three days to argue about it so the American people can see that they're obstructionists, he can't do "don't ask, don't tell," he can't do the DREAM Act, he can't go to the tax cuts. Giving the minority the power to waste more valuable time does not fix the problem right now, which is their capacity to waste valuable time.

JM: Let me give you a picture of how this could work. Your filibuster would trigger a period of continuous debate. One of the ideas I've put forward is that when there is a cloture vote, if it fails, then essentially 41 members are saying, "We want to continue to debate this," you say, "Okay, that's the start of continuous debate."

So, for example, the person speaking says, "I don't want to speak anymore. I want ... a quorum call; that will shut this place down for an hour and a half while I go get another senator," the presiding officer would say, "Is there anyone here who wishes to speak?" And if nobody wanted to speak, that breaks the filibuster.

Now pick any senator. Pick me. I'm going to decide that I want to block the tax cut bill, because I think it has problems. Well, I can stand up and speak for a day, maybe, if I don't drink any Coke or water, but at that point, unless somebody else wants to pick up the rhythm of it, I'm not going to be able to continue. I'll have had my say, I'll have rallied the troops, but if I didn't rally a single other senator to come and take over, well, when I stop, the filibuster's going to stop.

EK: But doesn't that situate the filibuster as a problem of individuals as opposed to parties? Because when you say this to me, I see how it is effective against Jim DeMint. But the normal problem for the Democrats is not just Jim DeMint, but 41, and now 47, Republicans, basically acting as a unit in all these things. And in that world, how hard is tag-teaming a long speech, particularly given that it's an opportunity to get your message out, and you can have all your staff feeding you content?

JM: The point you're making is that this isn't just about one disaffected senator, this is about a party that wants to slow things down. But right now, it's easy to do, you just file an objection and walk away. You don't have to be here all night. It gets much less appealing when you have to be there all night. Now your point is, "Could the minority party organize a day and night tagteam in order to, say, block the food safety bill?"

Well, maybe, but do they want to? Do they consider it important enough that their members want to be here all night? Members of the Senate are not all that excited about spending the night here. To your point, I threw in an additional suggestion, which is as time progresses, the number of senators required on the floor at all times is increased -- I suggested 5 and then 10 and then 20 -- for exactly the reason you're pointing out.

EK: I'll end on this because I know you guys have got to run. Our questions have been looking forwards, but this goes backwards. Was there a particular vote or particular moment in your time here that crystallized for you that this institution needs reform? Was there a thing you were watching where you were just like, "Okay, enough. I may be a freshman senator, but it's not a time for people who see what's going on here to stay silent."

JM: My first vote was on the package of wilderness bills, 165 wilderness bills. Why were there 165 bills backed up? Because it's so easy for one person to object to everything so, essentially, the Senate can't digest these bills one by one. The ease with which a person can object, often never even being public about it, go away to dinner but inflicting a week of delay, serves as a deterrent to any small piece of legislation.

So little things get folded into big things. The health bill should have been four different bills. There should have been a prevention bill, and there should have been an insurance market bill, a health-care bill of rights bill, a health-care workforce bill, each of which is much more coherent on its own and much more digestible for legislators and for the public. But they were all compiled together into something nobody could make any sense of because of the gauntlet of the filibuster.

So that first vote kind of put me on notice that something's substantially amiss, and it got worse from there. Just watching the nominations pile up on process, or advise and consent being completely abused, seeing the House bills come over here and knowing there’s no way anybody's going to bother to act on the because there's no chance of moving them forward, and of course the complexities of the big bills. So I was put on notice day one, and it's kind of built over time.

Photo credit: www.Merkley.Senate.gov