Republicans dare Democrats to reform the filibuster

By Ezra Klein

Mitch McConnell's threat to filibuster literally everything Democrats want to do until Democrats and Republicans agree to a compromise on the Bush tax cuts can be read as a power play, but it can also be read as a dare: At this point, Republicans are sure that they can abuse the rules as much as they'd like and Democrats won't dare do a thing about it. McConnell's blanket filibuster now joins Richard Shelby's blanket hold as the two most egregious acts of procedural brinkmanship in a Congress that's been chock-full of rules-based obstruction.

If there's a wild card here, it's Sen. Jeff Merkley and the other Democrats who've been agitating for rules reform for well over a year now. Today, Merkley released his proposal (pdf), and it's a detailed, thoughtful and supportable package of reforms -- even for those who believe in the filibuster.

Merkley starts with a simple observation: "The Senate’s original commitment to full and open debate has been transformed into an attack designed to paralyze and obstruct the Senate’s ability to function as a legislative body." That leads to a principle that's not often associated with reform of the filibuster, but perhaps should be: "Reforms should increase the ability of the minority party to participate in the process. Any approach that fails to take this approach will be viewed as a power grab and will be counterproductive."

He goes on to recommend reforms of the process that will ensure that the Senate has more time and opportunities to both consider and amend legislation, with more members present for the proceedings, and with more of the focus on ensuring debate and discussion. Under his proposal, senators could no longer filibuster the motion to proceed to debate on the bill because that, after all, leads to less debate. They also couldn't filibuster amendments, as that also leads to less debate and consideration. The opportunity to filibuster, rather, would be at the final vote, when there is a completed piece of legislation to debate.

Once a filibuster has started, Merkley would like to see it resemble the public conception of the practice. So rather than a private communication between members of the two parties’ leadership teams, it would actually be a floor debate -- and a crowded one. The first 24 hours would need five filibustering senators to be present, the second 24 hours would require 10, and after that, the filibuster would require 20 members of the minority on the floor continuously. Meanwhile, there would have to be an ongoing debate: "If a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded and a

simple majority vote is held according to further details established in the rules. ... Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process."

This is filibuster reform that even the filibuster's supporters can love: It focuses the practice on the tradition of debate and discussion that Senate traditionalists consider to be the institution's indispensable trait. Even so, a few days ago, I would've told you it didn't have a chance, as there'd be no energy to look at the rules again. But McConnell's announcement of a blanket filibuster that's meant to stop the Senate from debating legislation rather than ensure that all sides have time to be heard may be just the push the traditionalists needed.