Michael Brochstein/Sipa via AP Images
First100-031821
Sen. Jeff Merkley (D-OR) holds a press event on Wednesday to introduce Senate Bill 1, the For the People Act.
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The Chief
There’s a lot of talk about the filibuster these days, as Democrats recognize that they cannot enact their full agenda through reconciliation. But the first conversation I had with a member of the U.S. Senate about the filibuster was 2009. Jeff Merkley was a first-term Senator from Oregon, not even a year into his freshman term, and he was frustrated. “There’s no question that the Senate has become dysfunctional, and it’s not good for democracy,” he told me then. He was at that time working on reform ideas, but cautioned, “It’s going to be a long-term project.”
He was right! But we’re moving a few inches closer to fruition now. Joe Biden, a creature of the Senate for 36 years, called for reform this week, similar to what was in place when he first started out. “You had to stand up and command the floor, you had to keep talking,” Biden said. “Once you stopped talking, you lost that, and someone could move in and say, ‘I move the question of.’” This is a version of the talking filibuster, where a refusal to end debate means that Senators must actually debate if they want to obstruct.
Merkley, in an interview with the Prospect, also looked to the past. He was an intern in liberal Republican Senator Mark Hatfield’s office in 1976, and he saw how the Senate (which Biden was in at the time) operated. The chair would call on members, they’d hold a debate, and the question would be moved. “I left D.C. in 1991, came back in 2009, and I was like, ‘what happened to this place?’” Merkley said. “I was so shocked when I came to the Senate and saw how it had deteriorated as an institution.”
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The Biden endorsement of a talking filibuster was “very helpful,” Merkley said. He’s been pushing a similar proposal for a decade. “Every Democratic Senator who was here in 2011 voted for the talking filibuster,” Merkley pointed out, with the exception of Sen. Dianne Feinstein (D-CA), who missed the vote. (That includes Joe Manchin, incidentally, though not Kyrsten Sinema.)
A talking filibuster is sadly short of simple majority rule, but it’s what’s on the table now. It pressures the minority to come up with the votes to block legislation, rather than pressuring the majority to find votes to advance. You could make it so that a percentage of those “present and voting” can end debate, so if you’re not in the Senate chamber, you can’t block progress. Or you could force the maximum number of 41 Senators who want to block a vote to do so on the floor. (Manchin apparently took this off the table last night, but he’s been a bit all over the place.)
Merkley’s original concept was that the filibuster would just have to happen in the open, as was the case before an inadvertent rule change in 1975 allowed obstruction to occur quietly. On a bill like the democracy-reforming HR 1, for example—Merkley is a co-author of the Senate version, S1—a Senator would have to firmly state opposition to very popular provisions, over and over again. “If you have a talking filibuster, that member would have to talk about preventing vote by mail on the floor of the Senate,” Merkley said. “The people support getting rid of gerrymandering, they support vote by mail. Let’s have that debate in the light of day.”
This sounds good in theory, though critics have said it would mostly provide theater and not reach its intended goal of actually getting work done. One filibustering Senator could hand off to another, and another. Biden’s innovation, that anyone could interject to “call the question,” would be a powerful tool, as would forcing the minority to hold the floor together.
Merkley offered other ideas in our conversation. One was to give the minority party the ability to offer germane amendments to a bill, in exchange for giving up the ability to block it. He said that was unlikely to happen under Mitch McConnell. Another is to carve out a particular area of legislation and to free that from filibuster restrictions.
There’s a compelling argument that Republicans have repeatedly done this for their priorities. McConnell very explicitly blew out the supermajority threshold for Supreme Court nominees. Plus, you aren’t really supposed to use the budget reconciliation process for tax cuts, as Republicans did under Bush by inventing a new rule. Democrats changed the rule back, and Republicans reversed it again for the Trump tax cuts. “The base is angry,” he said. “They’re asking, ‘How can Republicans change the filibuster for tax cuts for the rich and Supreme Court nominations, and you can’t for your priorities?’” You could see this kind of carve-out for a bedrock principle like voting rights—“the ballot box is under assault,” Merkley said.
As talk has heated up, McConnell has vowed to make life impossible for the majority if the filibuster is eliminated. How would anyone know? Life is already impossible for the majority in the U.S. Senate. And I think Democrats, based on their public statements, are aware of the emptiness of that threat.
Now that Biden has weighed in, Merkley believes it’s time to get Senate Democrats in a room together, which hasn’t happened since the COVID crisis, to have an honest discussion about a resolution. “It’s very clear that those who worked so hard to get us elected do not accept the argument that Mitch McConnell can veto the priorities of the American people,” Merkley said. “Failure is not an option.”
Upon Further Review
Yesterday I mentioned a curious story about the Department of the Interior not renewing a pause on permitting for oil and gas drilling, but it appeared to just shift the responsibility for permitting to career staff at the agency, rather than senior officials. Yet there was also, as has been widely reported, a separate order from the White House pausing permits on new leases, pending a review of permitting practices.
Some activists made it sound like the Interior Department change meant that permitting would continue. So our intern Amelia Pollard called over. “The processing of permits never stopped,” said a department spokesperson. “There was a temporary period in which one additional layer of review was conducted.” The spokesperson also pointed to a virtual forum next week to review leasing, which “will help inform an interim report from the Department that will be completed in early summer.”
That announcement notes that the oil and gas industry has a huge stockpile of leases, with 13.9 million onshore acres and 9.3 million offshore acres dormant, totaling 7,700 unused permits. About 10 million acres of leases went out under the Trump administration. A lot of these came late and comprises what’s still being processed.
It’s unclear whether a new permit has been taken from beginning to end by the Biden administration; The Hill says there’s been no ban. And our executive action tracker item on this was actually to bar fossil fuel mining and drilling on federal lands and oceans entirely, which a president can do. That’s certainly not happening right now. So we changed the tracker from “Partial” to “No,” pending the review. It’s not like Biden is setting the world on fire with executive actions, so a backslide doesn’t look great.
What Day of Biden’s Presidency Is It?
Day 58.
Today I Learned
- Republicans whose governors constantly block cities from doing anything mildly progressive are whining that they can’t turn federal fiscal aid into tax cuts. (Washington Post)
- A corporate tax increase from 21 to 28 percent appears to be the centerpiece of the revenue side of the infrastructure bill. Under Obama the rate was 35 percent. (Axios)
- Tax day is now May 17, as expected considering all the changes in the American Rescue Plan. (ABC News)
- The House passed the bill extending the PPP deadline to the end of May, which I’d expect the Senate to advance and Biden to sign. (Wall Street Journal)
- The U.S. has already issued 90 million direct payments from the American Rescue Plan, so debt garnishment protection is way too late. (CNBC)
- Why are liberal think tanks strategizing how to resume student debt payments when cancellation is on the table? (The Intercept)
- The administration should send their AstraZeneca stockpile abroad, as is being discussed. (CNN)
- When will Biden offer a Long COVID strategy? (New York Times)
