Francis Chung/POLITICO via AP Images
Sen. Jeff Merkley (D-OR) speaks during a press conference at the U.S. Capitol, May 3, 2023.
In the fall of 2009, I scheduled a call with a freshman senator to talk about his vote against Ben Bernanke for another term as Federal Reserve chair. During the call, he made a reference to “procedural difficulties” when talking about the Affordable Care Act. I picked up on that: “You’ve been in the Senate a year now. How do you think the process works?”
“There’s no question that the Senate has become dysfunctional, and it’s not good for democracy,” Sen. Jeff Merkley (D-OR) replied. At that moment, interestingly enough, Democrats had 60 votes in the Senate. But even with enough votes to close debate on any policy bill, the process didn’t work, because the rules of the Senate gave the minority party so many tools to obstruct. Barely anything made the Senate floor, amendments were almost nonexistent because they required unanimous consent, hundreds of executive branch positions were unfilled, and most of a senator’s business involved waiting around, even with a supermajority.
Last week, Merkley, who has a new book out called Filibustered!: How to Fix the Broken Senate and Save America, told me that he wouldn’t even have known that another option was possible if he hadn’t served as an intern in Sen. Mark Hatfield’s office while in college. His job was to follow the floor debate for the Tax Reform Act of 1976. In an era before cameras and cellphones, Merkley had to watch the proceedings from the Senate gallery, run downstairs to brief Hatfield on amendment votes, and run back to the gallery to keep watching. He witnessed 125 amendments, all conducted on a majority-vote basis, in a few days. Senators debated a bill, tried to shape it, and then took an up-or-down vote on the overall legislation.
Merkley has spent the past 15 years trying to get the Senate back to that state. If the stars align, next year could be the culmination of what can now be considered his life’s work. Filibustered! (co-written with Merkley’s chief of staff Mike Zamore) is the definitive document of that struggle. It reads like the work of someone who has finely honed his arguments through rhetorical combat with his fellow senators. It’s full of great history and myth-busting, and an arsenal of explanations for why ending the filibuster as we know it would limit corruption, give all senators a voice in policymaking, and bring coherence to American democracy, instead of the alienation-producing machine we have now.
“When we have people coming to Capitol Hill who work on democracy issues,” Merkley said in an interview, “I say, ‘Your presentation is missing two critical words: filibuster reform.’”
AS I WROTE IN MY JAUNDICE-EYED LOOK AT AMERICAN DEMOCRACY, voters have flipped at least one chamber of Congress or the presidency in eight of the last nine elections. Yet they almost never get the results they assume that change would lead to, and a large reason why is the filibuster. “It’s a formula for frustration and cynicism and the appeal of an authoritarian government,” Merkley said. “The whole premise of democracy is if you fight for your beliefs and earn a majority you can put your policies in place. It becomes a national experiment. If it’s good voters will reward you, if it’s a dud it’ll get changed in the next cycle.”
We have no ability to conduct such experiments, because of the minority veto. And while I fault the Founding Fathers for much of the imperfections of our democracy, they did not intend to create a legislative body that could literally not express the will of the majority.
As Merkley explained, “Before we had the current constitution, we had the Articles of Confederation and Confederated Congress,” which needed nine of the 13 states to agree to exercise its limited powers. “When they tried to raise funds to pay pensions after the Revolutionary War, they couldn’t do it. When they tried to raise funds to put down Shays’ Rebellion, they couldn’t do it.”
The Congress created by the Constitution was explicitly designed to not be hamstrung by the minority. The framers specified what types of actions would need a supermajority—treaties, impeachment, constitutional amendments, and expulsion of a member. James Madison wrote in Federalist No. 58 that a supermajority vote for all policies would mean that “the fundamental principle of a free government would be reversed … the power would be transferred to the minority.”
“The early Senate had so many tools to make sure neither lengthy speeches nor filibuster-style obstruction would prevent the will of the Senate to go forward,” Merkley said. The biggest of those tools—the “motion on the previous question,” the mechanism by which the House closes debate and votes—was scribbled out of the Senate rules by a fastidious vice president, Aaron Burr, in 1805, because the Senate operated with such comity in those days (what Merkley calls “the Senate code”) that such a motion was never used.
The Founding Fathers did not intend to create a legislative body that could literally not express the will of the majority.
Even in the years between 1917 and 1964, a cloture vote, which cuts off debate, was voted on only six times, Merkley said. The filibuster was largely reserved for blocking civil rights legislation, which on its face should tell you something about the tool and who it serves. But today, thanks to growing ideological sorting and the ease with which the minority can obstruct, every single bill gets filibustered, usually twice (on the motion to proceed to debate and the motion to end debate).
A successful fight to lower the threshold for cloture in 1975—an attempt to make the Senate work better—actually made things worse. Then-Sen. Walter Mondale (D-MN) agreed to make the threshold three-fifths of all senators, rather than three-fifths of votes cast. This means that a 59-0 cloture vote in the Senate loses, and it allowed obstructionists to filibuster without lifting a finger. The filibuster went underground, with only the majority burdened by rounding up votes. The public doesn’t know there’s a debate going on; they just see nothing getting done.
Because of time allotments built into the rules, each cloture vote can take up to a week. There’s a tremendous amount of self-censorship in the Senate, where overwhelmingly bipartisan measures cannot get onto the floor because they would take too long. The path of least resistance is to do nothing—or, because of reforms passed in 2013, to do executive branch and judicial appointments that can still take a while but at least ultimately get a majority vote.
This robs a Senate majority of the ability to inspire their base by getting things passed. You don’t see the Democratic agenda reflected in Senate legislation this Congress, because it’s too time-consuming. This makes the majority look weak and ineffectual, and disconnects the relationship between elections and governing.
Merkley notes that amendments, which can also be filibustered, have practically vanished in the current Senate. “The ability to offer amendments means the powerful cannot hide,” Merkley told me. “Now it’s the reverse.” He explained that, under the unanimous-consent rules, amendments that would lead to uncomfortable votes are routinely blocked. That puts legislation largely in control of leadership, who dictates what goes to the floor in backroom deals. “Which means the majority and minority leaders can tell those powerful interests, ‘Give us lots of money and we’ll get your policy into the bill.’” The Senate rules, in other words, facilitate corruption.
The priorities of Republicans and Democrats mean that the rules work differently for each party. Merkley tells a story about budget reconciliation, a 1974 rule that created an exemption to the Senate supermajority for deficit reduction. It was twisted by the Gingrich-era Congress into something that can be used for tax cuts. (A former Bob Dole staffer named Robert Dove, who became the Senate parliamentarian, approved that change.) “It’s possible for Republicans to do tax breaks by simple majority, but they still maintain a veto over health care, housing, education, labor, civil rights, voting rights, and climate policy,” Merkley said. “Talk about a system rigged for the powerful.”
MERKLEY’S REFORMS WOULD END THE “DISILLUSIONMENT FACTORY” that is the modern Senate. He would eliminate the painless filibuster that just sets a 60-vote threshold for practically everything, and institute a talking filibuster, forcing the minority to make the effort to hold the floor in full view of the public, without being able to use dilatory tactics, before taking an up-or-down vote. Senators would have leverage but not a veto. He would also end the ability to filibuster the motion to proceed—which is just a way to begin debate on a bill—and guarantee ten germane amendments, five for each party. He would save time by ending cloture votes for nominations and moving directly to an up-or-down vote, while cutting the two days it takes for a cloture motion to “ripen” and post-cloture time. Unclogging Senate procedure would allow more time for critical priorities, and quickly pass bills that have broad bipartisan support.
Because the House and Senate are divided, we haven’t heard a lot lately about the filibuster. But we should hear about it this and every election year, as Democratic politicians make their pitches to the public. President Biden recently said at a rally, “Give me a Democratic House of Representatives and a bigger Democratic Senate, and we will pass a new law to restore and protect Roe v. Wade.” He knows that cannot get done without filibuster reform. Yet the public continues to receive promises that do not lead to results, and those making the promises continue to expect people to believe in democracy.
“I was at a campaign event hosted by John Legend,” Merkley told me. “After the two folks up for election gave policy presentations, John Legend got up and he said, ‘How are you going to get these policies passed given the filibuster?’ I hope for every Democrat to get that question.”
Merkley has dealt with institutional resistance to fixing the Senate from the day he got there. But the sharpness on display in his book has broken that resistance down. In 2022, his proposal for a talking filibuster—the first actual debate on the matter in history—got 48 votes. Since then, John Fetterman, an avowed supporter of filibuster reform, makes it 49. If Joe Manchin and Kyrsten Sinema, the only no votes to Merkley’s proposal, are out of the Senate next year and Democrats still have a majority—a tall order, as Merkley conceded—with a Democratic House and president, they will probably have enough support to change the Senate, and by extension change America.
Said Merkley of the opportunity: “I’m going to work like hell.”
Correction: A previous version of this story said that Alan Frumin was the parliamentarian who allowed tax cuts under budget reconciliation rules. It has been corrected to reflect that it was Robert Dove.
