Bend Bulletin: The Filibuster: a Fixture in the Senate, but one Merkley Says Needs New Limits

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The Filibuster: a Fixture in the Senate, but one Merkley Says Needs New Limits

Source: Bend Bulletin

By Keith Chu

After a year spent watching Republicans throw everything but the kitchen sink in the path of Democrats' agenda, U.S. Sen. Jeff Merkley thinks it's time to change how the Senate works.

The Oregon Democrat's target is the most potent tool of the minority party: the filibuster, which, when invoked, delays work on a given bill or nomination and requires time-consuming votes, with 60 senators agreeing, to get things moving again.

"They're simply going to try to throw bricks at everything," Merkley said. "It is out of control."
To speed up Senate business, Merkley has had informal talks with his colleagues about ways to limit the filibuster, including restricting its use when confirming administration nominees or spending bills, or doing away with the tool when majorities are small, so a minority party's objections don't bring business to a halt.

Senators in the majority party have long complained about filibusters sapping their voter-given strength, but it's been more than a quarter-century since they've taken a significant step to reduce the maneuver's power.

Minority parties have a history of holding up the agenda of the party in control. And the idea that the Senate should take its time has been around since the nation's birth. George Washington famously told Thomas Jefferson that "we pour legislation into the senatorial saucer to cool it."

Congressional scholars say it's probably unlikely that Democrats will manage to change things this time, either. But they agreed that minority parties have become more willing to use filibusters to delay Senate business. Statistics of votes to end filibusters -- called invoking cloture -- compiled by the nonpartisan U.S. Senate Historian's Office, found those votes more than doubled in the 2007-08 Congress to a historical record of 112. The chamber is on pace for about 80 cloture votes in the 2009-10 Congress, which would be the second-highest total.

The most blatant example of obstruction, Merkley said, has been the health care bill that passed the Senate on Christmas Eve. Rather than debating the merit of critical issues, like a public insurance option or abortion coverage, "there was no good faith effort to bring those sorts of amendments, and that means we lost an opportunity for what could have been a series of very valuable discussions and votes," Merkley said.

But Merkley said he wants to divorce his effort to reform filibuster rules from current politics. That's why he's batted around the idea of reforms that wouldn't go into effect for years, so neither party would clearly benefit.

The trick, Merkley said, is finding a way to let individual senators take a stand on important issues, without requiring a supermajority for everyday business.

"It used to be the filibuster rules enabled people to take a strong stand very occasionally on issues of great import, but the understanding was it had to be something very close to your heart," Merkley said. "But it has become such a routine procedural obstacle, just to make it impossible for the Senate to function."

U.S. Senate historian Donald Ritchie said the use of filibusters has increased dramatically over the past 20 years, in part because senators are now much more likely to vote along party lines.
"It's very unusual in the U.S. systems that parties have so much internal discipline," Ritchie said.
Despite its detractors, the filibuster continues to have defenders, who say it forces moderation in controversial laws. American Enterprise Institute research fellow John Fortier, in a Web post, pointed to the current health care bill as an example.

"It is not always pretty, but all of the holdouts by various senators on the public option, fiscal discipline, abortion and some parochial concerns moved the bill toward the center," Fortier wrote.
Sarah Binder, a political science professor at George Washington University, said the harms of filibusters -- which were key to blocking anti-lynching laws and reforming voting rights -- outweigh any supposed moderating effects on legislation. Still, the tactic will likely remain in use for the foreseeable future, she said. Changing the rules requires 67 Senate votes, which would be hard to find, Binder said.

"In the past, when the majority has surmounted the 67-vote threshold, it has been because both political parties were frustrated with the behavior of filibustering senators," Binder said. "I don't sense that filibuster reform is around the corner."

Beyond that, some moderate Democrats likely wouldn't benefit from filibuster reform, because they'd lose their leverage to influence legislation, according to University of Miami professor Greg Koger, in a 2008 paper on the strategic use of filibusters. For example, Nebraska Democratic Sen. Ben Nelson probably benefited from the Republican filibuster on the health care reform bill, since it put him in a position to demand special payouts to his state as a concession for voting for health care legislation.

"In a legislative setting, majority rule invites domination by party leaders, presidents and interest groups who buy or coerce enough votes to win," Koger wrote. "Drastic reform would not necessarily benefit the members of the majority party because it would invite increased pressure to toe the party line and to ignore personal or constituent preferences."

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