Oregon Sen. Jeff Merkley sees a path to reform the filibuster

President Joe Biden’s announcement last week that he would support an exception to the filibuster to protect abortion rights made headlines, but two Democratic U.S. senators soon dashed any hope that they would waive the rule that blocks almost all partisan legislation from moving forward.

A similar story played out over U.S. Senate Democrats’ attempts to pass national voting rights laws in October and January. The filibuster effectively requires at least 60 members of the Senate to support a measure. Democrats Joe Manchin of West Virginia and Kyrsten Sinema of Arizona won’t agree to end it or support exceptions.

Oregon’s U.S. Sen. Jeff Merkley, the Democrat leading the party’s filibuster reform efforts, contends that he has a better solution. So far, he hasn’t persuaded Manchin, Sinema or any Republicans, but the 47 other Democrats support his proposal. 

“When people say ‘Jeff, you’re leading the effort to get rid of the filibuster,’ I’m like, ‘No, I’m leading the effort to reform the filibuster,’” Merkley told the Capital Chronicle. “We want the minority to have a voice. We want them to have leverage. We want the Senate to be where every senator counts, but not a place that encourages partisanship and paralysis, which is what we have now in this current silent, secret filibuster where nobody even has to speak on the floor.” 

His solution? Make senators talk.

Today, the filibuster doesn’t look much like the famous scene from “Mr. Smith Goes to Washington,” where an idealistic and politically naive freshman senator played by Jimmy Stewart spent nearly 24 hours on his feet arguing against corruption and reading from the U.S. Constitution. At the time of the 1939 film, and until the early 1970s, senators had to stand and talk if they wanted to block a vote. 

Now, all it takes is an acknowledgement that 41 senators will oppose moving to a vote on a bill. Senators don’t need to make their case in speeches from the Senate floor, or even be there – just sending an email is enough to prevent a bill from coming to the floor.

Merkley said he was shocked by the “paralysis” in the Senate after his 2008 election. The Senate wasn’t this gridlocked ​​when he interned in 1976 for Sen. Mark Hatfield, a former Oregon governor. Nor was the Oregon Legislature, where he had served as House Speaker.

The U.S. Senate of 1976 and the Oregon Legislature both operated under majority rule, but any business in the modern Senate requires a supermajority vote. That means bills take much longer, and any major legislation that stands a chance of passing ends up in a “mega-bill,” Merkley said. The latest major voting rights legislation congressional Democrats proposed this spring is more than 700 pages, and the bipartisan infrastructure law passed last year takes up more than 1,000. 

These days, the majority party does most of its work through budget reconciliation bills that aren’t subject to filibusters. The scope of those bills is somewhat limited to raising or spending money – but both parties have used reconciliation for major policy changes, including large tax cuts in the Bush and Trump administrations and last year’s Covid relief measure. The Affordable Care Act, the Obama administration’s signature health care law, wasn’t passed through budget reconciliation, but Republicans tried to use reconciliation to repeal it. 

The filibuster gives whatever party is in the minority an incentive not to compromise, Merkley said.

“This was an idea introduced by (former Speaker Newt) Gingrich in the House: you don’t try to get your stuff passed in the minority. You just try to paralyze the majority,” Merkley said. “And in the Senate, (Republican Leader Mitch) McConnell had a super-weapon for this goal of paralyzing the majority. So the current filibuster encourages paralysis and partisanship; the talking filibuster gives an incentive for both sides to be in dialogue.”

Under his proposal, a simple majority of senators could vote to start debate on a bill in its final form. Every senator would have two chances to speak, and for an unlimited time period. It could take weeks, like the stalemate over the Civil Rights Act of 1964, when a group of southern senators spent two and a half months delivering speeches and forcing votes on amendments until a bipartisan majority ended their filibuster. 

A talking filibuster means the minority would have to do the hard work of having people on the floor continuously talking and making their case, he said, and it would provide an incentive to the majority party to negotiate deals to avoid losing days or weeks of time as their colleagues protest. 

Merkley said he would still support such a change if he were in the minority. 

“Our institutions are in deep disrepair,” he said. “Having a system in the Senate that encourages partisanship and paralysis is a horrific situation, and I’m just immersed in trying to change that. I have 48 votes to change it. We need 50.” 

Oregon’s senior senator, Ron Wyden, said he supported ending the filibuster altogether.

“Arcane Senate rules like the filibuster shouldn’t stand in the way of protecting abortion rights,” Wyden said. “And yes, I have called for the end to the filibuster as well for voting rights — the essential building block of democracy. It’s no small irony that an esoteric procedure to thwart a majority vote is weakening that fundamental voting right for all Americans.”

– Capital Chronicle Editor Lynne Terry contributed reporting