Democratic Solution To The Filibuster: Make Them Talk

WASHINGTON -- The next time a minority of senators find something the majority supports to be objectionable, they may be required to take the Senate floor and explain just why they object. And when they're done with that, they'll have to keep talking, and talking, and talking.

The most persistent advice that Senate Majority Leader Harry Reid (D-Nev.) said he gets from liberals he meets across the country is as simple as it is frustrating: "Make them actually filibuster!"

The advice grew loud enough in 2009 that Reid's office leaked a memo to HuffPost explaining why exactly Senate Democratic leaders can't force Republicans to talk out their filibuster, Mr. Smith-style. In 2011, Reid flirted with filibuster reform, but backed off at the last minute, striking a handshake deal with Republican Minority Leader Mitch McConnell (R-Ky.) instead. That agreement -- that the two would cooperate to make sure the chamber ran smoothly -- lasted as long as one might expect.

Now, Reid is ready to pull the trigger on a change. "I was wrong," Reid said recently about his unwillingness to back a handful of junior senators who were pushing for reform.

With Reid's backing, the reform caucus stands a good chance of enacting rules changes. The plan they're putting forward is still taking shape as the reformers work to gather support, but its central tenets were laid out by Sen. Jeff Merkley (D-Ore.) in an interview with The Huffington Post.

Merkley said that he first pitched filibuster reform to Reid in the summer of 2007, while he was being recruited as a candidate. The plan he put forward in 2011, he said, has been significantly revised.

The critical component, though, is a mechanism that would force senators to physically take the floor and speak in order to maintain opposition to legislation. The effort to end a filibuster is called a cloture motion. Under the proposed rules, if a cloture vote failed to win a simple majority, the bill would be killed and the Senate would move to new business. But if it won a majority -- though less than a supermajority of 60 -- the bill would remain on the floor for any senator who wished to opine on it. If at some point no senator rose to speak, after given several chances to do so, a new vote would be called -- and only a simple majority would be needed to pass it.

"You have to present your case," said Merkley. "If you think there should be more debate, then you've got to debate. You've got to present your case before your colleagues, before the American public. If you haven't got the guts to do that, then you shouldn't stand in the way of the majority vote."

The thinking behind the proposed rule is that it will highlight opposition that is unpopular, but will still allow a determined minority to block legislation. Liberal supporters of the filibuster argue that eliminating it would lead to restrictions on reproductive rights, drilling in the Alaska National Wildlife Refuge or other rollbacks of major gains. But, as long as a handful of senators are willing to take turns holding the floor, then the Alaska National Wildlife Refuge is safe, Merkley said.

Whether the senators can maintain their filibuster, then, will come down to determination and public pressure. Merkley argued that Republicans would've been unable to block legislation related to jobs for veterans or campaign finance disclosure, for instance, if they'd had to do so in public.

"I think about the Veteran's Job Bill. If the Republicans had -- instead of killing it through the silent filibuster, they'd had to take the floor before we parted for elections and say we are blocking a vote and they'd had to go through a night blocking the vote -- I think enough Americans would have given feedback to their legislators on both sides of the aisle, and said, 'That's crazy. Stop that. Support ending that filibuster.' We would have gotten 60 votes," he said.

"I'm convinced that on the Disclose Act, [if] people had to take the floor and defend that, after they had argued for disclosure during McCain-Feingold, that now they were arguing that secrecy is okay and had to be on the floor for nights or weekends or a week, we would have gotten a 60th vote. And that's why it is so important to be able to have the public see what is happening. It's just hidden now," Merkley said, referring to a bill that would have required political donors to disclose their identity. The bill fell one short of the 60 needed to invoke cloture and move to a final debate.

Merkely said that the package he and his allies put together will also include more direct reforms. Reid has suggested simply eliminating the filibuster on the motion to proceed to debate, which would save the Senate many hundreds of hours of wasted time the course of a term. Merkley said such a provision was likely to make it into the final package, as well as restrictions on filibustering efforts to send a bill to conference. Under current rules, even after a bill has passed the Senate, the minority can still use the filibuster to attempt to block it from going to a conference committee with House legislation, chewing up days of the Senate calendar.

"It's not a silver bullet, but it represents a change of thinking in that there has been this perpetual hope that somehow we could just restore the social contract that existed in the 1970s," said Merkley. "And that social contract came from a group of folks who served in World War II together. Their families lived here and knew each other. Their children knew each other. We had three [television] networks bringing the national conversation together. That framework does not exist. And so I come from the opinion that we have a responsibility to the nation to enable this body to have debates and make decisions. And there is no other course left but to modify some of the rules that are being abused to keep us from doing our job."