Fix The Filibuster By Making Senators Actually Filibuster

Oregon Senator Jeff Merkley wants to fix the filibuster by making Senators actually filibuster. It's a good idea.

Doug Mataconis · · 11 comments

Oregon Senator Jeff Merkley has an idea about how to reform, and possibly rein in, the use of the filibuster rule in the Senate. His solution ? Make Senators who want to block legislation actually conduct a filibuster:

The problem for those who want to do away with the filibuster and restore some functionality to the Senate is that some argue it requires a two thirds vote to make it happen — a virtual impossibility given today’s Senate math. (Update: See below.) But Senator Jeff Merkley, one of a younger crop of reform-minded Democrats, has thought of a way around this problem: Start with a smaller reform that could make filibustering muchmore politically difficult than it is right now. Merkley is working behind the scenes to build support for a rules change that would force Senators to actually filibuster on the floor. (…) Under Merkley’s proposed change, if a party or group of Senators oppose bringing a bill to the floor for debate — or opposes ending debate — they will have to sustain continued opposition on the floor of the Senate. If they don’t, the filibuster collapses. The idea is to force the filibuster out into the light of day, where the public can see what’s happening.

Ezra Klein, who’s been writing about filibuster reform for the better part of a year now, describes Merkley’s proposal:

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 isn’t the traditional “one man against the world” filibuster of Mr. Smith Goes To Washington or The West Wing episode The Stackhouse Filibuster, but it strikes me as an idea worth considering. There is something fundamentally dishonest about blocking legislation using parliamentary tricks that don’t actually require the blocking party to take an affirmative action, but instead force the party trying to advance the to assemble a super majority in order to even get to the point of being able to vote on the bill in question. There is, as Steven Taylor noted several months ago, something problematic about the fact that legislation can be blocked when it has 59 votes out of 100, even more so when that can be accomplished through a procedural vote rather than debate.

It’s fairly clear that Democrats lack the votes they would need to completely eliminate the filibuster in the new Senate, and that’s even more true after the results of the midterm elections. However, there might just be enough support for Merkley’s proposal or something like it. It would be more honest than what the Senate does now, and it just might force Senators who want to block a bill just for the spite of it to think twice about it if they have to get up on the Senate floor and justify their position to the world.