Challenging the Filibuster Old Guard

"By a vote of 53 to 36, the Senate defeated a proposal to extend tax cuts first on those earning up to $250,000 in income," Capitol Hill's Roll Call explained over the weekend. It was a typical Senate defeat, where a majority supported the losing measure and a minority achieved a filibustered veto.

It's been well observed in Washington that it doesn't cost much to filibuster: Senators don't have to speak or stay on the floor of the Senate. They only need to say a few words to their leaders, and the whole institution grinds to a halt. The public, of course, doesn't see that level of detail, which makes things difficult for those interested in reform -- but that could change.

"The public believes the filibuster is an opportunity to enhance debate by allowing people to take a stand before the American people and personally invest time and energy in slowing down the Senate to make their point heard," Sen. Jeff Merkley says. "We should make it so."

Merkley has floated a proposal to reform the filibuster by forcing senators to actually take to the floor to obstruct Senate debate and by limiting the number of times the maneuver can be used to stop a piece of legislation. He and several allies hope it will win the support of 51 senators when the new Congress comes into session in January, the easiest time to amend the Senate's rules.

A growing number of newer Democratic senators -- elected in '06, '08, and '10 -- haven't been impressed with the state of the institution they came to Washington to join. Merkley, a veteran state legislator who was the speaker of Oregon's House before his election in 2008, gets straight to the point.

"The Senate likes to think of itself as the world's greatest deliberative body, but it is less deliberative than virtually any state legislature in the nation," he says.

It's true that the first Congress of the Obama administration has been extraordinarily productive, resulting in a major fiscal stimulus, overhauls of the health-care system and financial regulation, and smaller laws that in other years might have been signature accomplishments. But the Senate failed to act on numerous bills passed by the House -- notably, a comprehensive energy-reform bill -- and the nominations process has been brought to a standstill: Fewer judicial officials have been approved than during any other administration since Richard Nixon's.

There are subtler problems. Merkley argues that the legislative strategies needed to surmount filibusters -- packing as many ideas as possible into single, huge bills and limiting the ability of senators to offer amendments (since each one offers an opportunity for filibustering) -- produces low-quality bills. If Senate leaders didn't have to worry about everything coming to a halt all the time, the theory goes, it would free up debate and result in better laws.

For those reasons, and because of a desire to attract Republican votes (and protect any future Democratic minorities), Merkley also proposes a procedural shift that would give the minority the ability to introduce, debate, and vote on amendments without unanimous consent of the entire body.

Yet some of his colleagues, especially the older ones, just don't get it. Retiring Banking Chair Chris Dodd, a senator since 1981 whose father was a senator before him, called such reforms "unwise."

"The Senate was designed to be different, not simply for the sake of variety but because the framers believed the Senate could and should be the venue in which statesmen would lift America up to meet its unique challenges," Dodd continued.

However the Senate was designed, what's different is how its procedures are deployed today. Even longtime congressional observers like Norm Ornstein argue that much has changed since the 1960s, when there were about three filibusters a year. Today, there are more than two a week.

It doesn't make sense to continue on with a practice for tradition's sake if the practice isn't making anyone's life better. Too many bills are being filibustered that are passed with 70 or even 90 votes, wasting the time of the government when it faces complicated challenges in every arena.

Dodd and other old-guard senators are often referred to as institutionalists, because they place their devotion to the Senate above partisan priorities. But when they place their devotion to the Senate over their duty to the public, they are missing the point.

"This is not the framework in which anyone who cares about the function of the institution would feel like the institution is functioning well," Merkley says. "If we turn the clock back 30 years ... senators understood that for them, individually, to hold up the work of the Senate, it had to be an issue of profound importance to the nation. That understanding is gone."

This Senate needs a new generation of institutionalists who care enough about the chamber's work to fix it. On Jan. 5, Sen. Tom Udall, one of Merkley's peers, will bring a reform proposal to the floor; it will need 51 votes to become a rule of the Senate. The question for each member will be simple: Do they want rules that create opportunities to make laws or rules that provide chances to make excuses?

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