Jeff Merkley – dwkcommentaries

Additional Reactions to U.S. Senate’s Adoption of Modest Reforms to Its Filibuster Rule

As already reported in a prior post, the U.S. Senate on January 24th adopted modest reforms to its filibuster rule, and the initial reactions were mixed. Here are some additional reactions.

The Majority and Minority Leaders

The brokers of the actual reforms–Democratic Senator Harry Reid, the Majority Leader, and Republican Senator Mitch McConnell, the Minority Leader–issued statements afterwards.

Senator Reid said the reforms are “steps towards ending gridlock in the Senate, and making this body a more efficient place while still respecting the rights of the minority. Americans of all political stripes can agree that Washington is not working the way it should. We were elected to get things done for the middle class – not waste time with endless stalling tactics that cause even bills with broad bipartisan support to languish for weeks. These reforms will allow us to deal with legislation in a more timely fashion, and weaken the ability of those who seek to obstruct for obstruction’s sake”
Reid added, “If these reforms do not do enough to end the gridlock here in Washington, we will consider doing more in the future.”

McConnell, on the other hand, emphasized that the bipartisan compromise package ” avoided the nuclear option, and . . . [retained the rule] that any changes to the Standing Rules of the Senate still require 67 [two-thirds] votes.” He also expressed home “the Senate can return to the way it used to operate and that all of us will be able to participate more fully in the legislative process.”

Leaders for Stronger Reforms

Senator Jeff Merkley, one of the leaders for stronger reforms, recognized that the Senate as a whole had declared “the paralysis of the Senate is unacceptable.” The adopted reforms, he said, “are modest, and don’t address the core problem of the secret, silent filibuster, but they do include some important elements, providing flexibility on the motion to proceed and speeding up the confirmation process on nominations.”

“If these modest steps do not end the paralysis the Senate currently suffers,” Merkley added,” many Senators are determined to revisit this debate and explore stronger remedies,” and he would keep working to that end. “We have a responsibility to address the big issues facing our country. I’ll keep working with my colleagues to achieve that goal.”

In an interview, Merkley reiterated his commitment to pressing for additional reform if nothing much changes in this session of the Congress.

The other leader for stronger reforms was Senator Tom Udall of New Mexico. He said that although the adopted reforms were “not as strong what many of us have been advocating,” they did alter “the way we deal with nominations, conference committees and motions to proceed — all things I’ve been working toward.” Udall, therefore, was “supporting . . . [the] efforts to get a bipartisan agreement today,” but would “continue to fight for the stronger filibuster reforms my colleagues and I believe will make the Senate a more accountable institution.”

Udall also emphasized that the external infrastructure for Senate reform would continue and remain vigilant and ready to push for more action later if necessary.

Conclusion

I hope that these limited changes will make the Senate more functional.

But I am skeptical.

For example, in this new session of Congress Republicans are delaying a Judiciary Committee hearing on the President’s nomination of a very able lawyer to be a circuit court judge. The purported justification is their demand for information about the Government’s settlement of a case in which he had a minor role.

Another example is the limited changes’ failure to alter the filibuster rule for high-level presidential appointments. This week an appellate court held that President Obama violated the Constitution by making several recess appointments to the National Labor Board, which otherwise were subject to Senate confirmation, when the Senate was not really open for business, but rather in Potemkin Village illusions of sessions. According to the New York Times, this Republican senatorial practice and the court’s decision demonstrate how the Democrats’ “timidity” on reforming the filibuster rule “is being used against them.”

U.S. Senate Adopts Modest Reform of Its Filibuster Rule

On January 24, 2013, the U.S. Senate adopted a bipartisan modest two-part reform of its filibuster rule. Both were adopted by over two-thirds of those voting and thereby complying with another part of its rules requiring a two-thirds vote to amend the rules.

This bipartisan reform package was brokered by Majority Leader, Democratic Senator Harry Reid of Nevada, and the Minority Leader, Republican Senator Mitch McConnell of Kentucky.[1]

The Reform

The reform has two parts.

By a 78-16 vote, the Senate adopted the first part of the package. For only the two years of this session of Congress and by standing order only, the minority Republicans will have the right to make a minimum number of amendments during floor debate, but their ability to use filibusters to prevent debate on legislation will be limited. This part also will limit dilatory tactics on lower-tiered judicial and executive branch nominees.[2]

The second part of the reform package was a permanent amendment to the Senate rules to allow prompt scheduling of legislation where there is a bipartisan consensus for passage and limit stalling tactics to prevent Senate conferees from meeting with their House counterparts to resolve differences in competing bills. This part was adopted by a vote of 86-9. [3]

This bipartisan reform eliminated the possibility of the Democratic Senators using the so called “constitutional” or “nuclear” option of changing the rules by a simple majority vote.[4]

Reactions to the Reform

Thursday night President Obama immediately released a statement saying he was pleased the Senate had taken action to move routine measures along. He observed that in his last State of the Union address, he had “urged Congress to take steps to fix the way they do business. Specifically, I asked them to address the fact that a simple majority is no longer enough to pass anything – even routine business – through the Senate,”

The President continued, “At a time when we face critical decisions on a whole range of issues – from preventing further gun violence, to reforming our broken immigration system, to getting our fiscal house in order and creating good paying jobs – we cannot afford unnecessary obstruction.”

President Obama also noted that the reforms “are a positive step towards a fairer and more efficient system of considering district court nominees, and I urge the Senate to treat all of my judicial nominees in the same spirit.”

Washington political commentators suggest the following reasons for the adoption of these modest reform measures, rather than the “speaking filibuster” proposal led by Senators Jeff Markey and Tom Udall:

very few citizens care about the filibuster and its reform, and the activists who did were not effective in rallying public opinion;
virtually no individual senator– especially the Majority Leader Harry Reid–wants the Senate to be like the House of Representatives which operates by simple majority rule;
the current Majority Leader and other Democratic senators are pragmatists and realize that in the future, perhaps as early as 2015, they could be in the minority and do not want the Republican majority to ram things through by a simple majority vote;
the “talking filibuster” alternative option advanced by Senators Merkley and Tom Udall was seen by many as an ineffective idea; and
partial bipartisan reform now may lead to more reform later.

Senator Tom Harkin, Democrat of Iowa and a sponsor of one of the motions to amend the filibuster rule, on the other hand, was very disappointed in this result. He said that he previously had warned President Obama that if there were no serious reform of the filibuster rule, Obama “might as well take a four-year vacation.”

Senator Merkley, one of the leaders for the speaking filibuster proposal, said he was “disappointed with the package but noted the ‘growing momentum’ toward Senate reforms.” He “also vowed to continue pushing filibuster reforms if the Senate returns to its clogged, unproductive state of the past two years.”

The activists for reform were equally disappointed. The leader of the Progressive Change Campaign Committee said, “This is a bad decision based on fear–a decision that will ultimately hurt millions of people who would have been helped by progressive bills that the Republicans are sure to filibuster.” The political director of CREDO opined, “It looks like Senator Reid got fooled again, but sadly it’s the American people who are going to pay the price.” Another citizen reformer noted, “It changes nothing on how we move forward.” Fix the Senate Now, a coalition for reform, said it was a “missed opportunity.”

[1] Raju & Gibson, Reid, McConnell reach Senate filibuster deal, Politico (Jan. 24, 2013); Kane, Senate leaders reach deal modifying filibuster rules, keep 60-vote hurdle, Wash. Post (Jan. 24, 2013); Slack, Obama hopeful Senate filibuster deal will pave way for meaningful action, Politico (Jan. 24, 2013); Bernstein, Why Senate reform fizzled (for now), Wash. Post (Jan. 24, 2013); Clizza, Why filibuster reform didn’t happen, Wash. Post (Jan. 24, 2013); Klein, Harry Reid:”I’m not personally, at this stage, ready to get rid of the 60-vote threshold, Wash. Post (Jan. 24, 2013); Tom Harkin: Filibuster Reform Failure Hamstrings Obama Agenda, Huff. Post (Jan. 24, 2013). The proceedings on reform of the filibuster rule are found at Cong. Rec. S247-S274 (Jan. 24, 2013).

[2] The first part of the reform was Senate Resolution 15, and its text and 76-16 roll call are found at Cong. Rec. S272 (Jan. 24, 2013).

[3] The second part of the reform was Senate Resolution 16, and its text and 86-9 roll call are found at Cong. Rec. S274 (Jan. 24, 2013).

[4] Senator Harkin’s proposal for amending the filibuster rule was defeated as was a proposed amendment to the rules offered by Senator Mike Lee (Republican of Utah). (Cong. Rec. S271 (Jan. 24, 2013).) The reform proposals offered on January 3, 2013 by Senators Tom Udall, Merkley and Lautenberg were not brought to a vote. In his remarks on the floor, Senator Carl Levin entered into the record what he described as a lengthy rebuttal of the claim that the Senate had the constitutional power to change its rules by a simple majority vote.

U.S. Senate Postpones Decision on Filibuster Reform to January 22nd

On January 3rd the U.S. Senate convened for the first time in the 113th Congress. Since amending its rules is one of the first orders of business, four resolutions were offered to do just that. But no debate and action were taken on those resolutions and instead were postponed to January 22nd when the Senate will resume its business after today’s recess.[1]

Majority Leader Reid’s Statement

Majority Leader Harry Reid gave the reason for such postponement after noting that the Senate needed to change its rules to improve its efficiency and that the “beginning of a new Congress is customarily a time that the Senate addresses changes to its rules.” He complimented Senators Jeff Merkley, Tom Udall, Tom Harkin and Sheldon Whitehouse for making a persuasive case for reform of such rules in the last Congress and then noted that in “recent months, Senators on both sides of the aisle set about trying to broker a compromise. This group was led by Democratic Senator Levin and Republican Senator McCain. I thank them for their many hours of work and negotiation.”

Senator Reid said that because of preoccupation with other matters, including the fiscal cliff, in the final days of the last Congress, there had not been sufficient time to explore this compromise effort. On January 3rd, he added, the Senate would “reserve the right of all Senators to propose changes to the Senate rules . . . [would] explicitly not acquiesce in the carrying over of all the rules from the last Congress . . . [and would] recess today, rather than adjourn, to continue the same legislative day, and allow this important rules discussion to continue later this month [on January 22nd].” This extra time, he confidently added, would allow “the Republican leader and I . . . [to] come to an agreement that allows the Senate to work more efficiently.”

Resolutions To Amend the Filibuster Rule

The four resolutions to amend the filibuster rule were offered by Democratic Senators Tom Udall of New Mexico, Tom Harkin of Iowa, Barbara Mikulski of Maryland, Jeff Merkley of Oregon and Frank Lautenberg of New Jersey.

Senate Resolution No. 4 (Senator Udall) would (1) eliminate the filibuster on motions to proceed while allowing two hours of debate on such a motion; (2) require a talking filibuster whereby Senators who filibuster actually have to speak on the floor, greatly increasing public accountability and requiring time and energy if the minority wants to use this tool to obstruct the Senate; (3) expedite nominations by reducing post-cloture debate on nominations from 30 hours to 2 hours, except for Supreme Court Justices (for whom the current 30 hours would remain intact); and (4) eliminate the filibuster on motions to establish a conference committee with the House of Representatives to work out differences on bills.[2]

In a conference with reporters after the abbreviated January 3rd session, Senators Udall and Merkley said that they already had the support of at least 48 of the Democratic and Independent Senators and were confident that they could gain the backing of at least three of the other seven Democratic Senators to give them the 51 votes necessary for adoption under the so-called “constitutional” or “nuclear” option. Udall and Merkley admitted, however, that it was most difficult to obtain the additional support for the talking filibuster component.

If the chamber were deadlocked at 50-50, it is anticipated that Vice President Joe Biden, who is the presiding officer of the Senate and who supports filibuster reform, would break the tie in favor of reform.

Senate Resolution No. 5 (Senators Harkin and Mikulski) would amend the rules to permit a decreasing majority of Senators to invoke cloture. On the first cloture vote, 60 votes would be needed to end debate. If one did not get 60 votes, one could file another cloture motion and two days later have another vote. That vote would require 57 votes to end debate. If cloture was not obtained, one could file another cloture motion and wait two more days. In that vote, one would need 54 votes to end debate. If one did not get that, one could file one more cloture motion, wait two more days, and 51 votes would be needed to move to the merits of the bill. The resolution also would guarantee a certain number of germane amendments.[3]

Senator Harkin in a press release stated, “The abuse of the filibuster in recent years has fundamentally changed the character of the Senate and our entire system of government. The notion that 60 votes are required to pass any measure or confirm any nominee is not in the Constitution and until recently would have been considered a ludicrous idea that flies in the face of any definition of government by democracy.”

Harkin added, “At issue is a fundamental principle of our democracy – majority rule in a legislative body. I am not afraid of democracy and my colleagues should not be afraid either. Issues of public policy should be decided at the ballot box, not by manipulation of arcane procedural rules. After ample protections for debate, deliberation and amendments, the majority in the Senate should be allowed to carry out its agenda, to govern, and to be held accountable by the voters.”

In addition to their own resolution, Harkin and Mikulski also support the Udall-Merkley “talking filibuster” proposal and the concept that those who wish to obstruct should at the very least be required to come to the floor to debate.

Senate Resolution No. 6 (Senator Merkley). This resolution is a more limited measure. It would limit the two-thirds requirement for amending the rules to only those Senators attending and voting and would modify the rule regarding extended debate.[4]

Senate Resolution No. 7 (Senator Lautenberg) would force Senators to engage in actual debate on the Senate floor after cloture (a call for 60 votes to break a filibuster) is filed on a motion, nomination, or legislation. If, at any time after the first degree amendment filing deadline has passed, debate ceases and the Senator or Senators conducting the filibuster give up the floor, the Senate could move to an immediate vote. The same would hold true for the thirty hours of post-cloture time attached to motions to proceed and executive nominations.[5]

Senator Lautenberg in a press release said, “It has become all too common for Senators to block legislation and never explain why they are stopping business dead in its tracks. My ‘Mr. Smith’ resolution would cut down on obstruction in Washington by requiring filibustering Senators to defend their position to the American people. The talking filibuster is a common-sense approach to breaking gridlock and getting the Senate back to doing the people’s business. The Senate has become a deadlocked—not deliberative—body, and reform of the Senate rules will be important as we start the 113th Congress.”

[1] Many prior posts have discussed the need for reform of the filibuster rule. One of those posts focused on the recent bipartisan efforts to develop a more limited reform. See also Saddiqui & Grim, On Filibuster Reform, Advocates Claim Momentum, Huffington Post (Jan. 3, 2013); Wiegel, Merkley, Udall Release Filibuster Reform Plan, Claim Between 48 and 51 Votes, Slate (Jan. 3, 2012).

[2] The formal title of Resolution No. 4 is “A resolution to limit certain uses of the filibuster in the Senate to improve the legislative process.” Its full text is online as are are Senator Udall’s remarks.

[3] The formal title of Resolution No. 5 is “A resolution amending the Standing Rules of the Senate to provide for cloture to be invoked with less than a three-fifths majority vote after additional debate.” The full text of this resolution is online.

[4] The formal title of Resolution No. 6 is “A resolution to modify extended debate in the Senate to improve the legislative process.” Its full text is available online.

[5] The formal title of Resolution No. 7 is “A resolution to permit the Senate to avoid unnecessary delay and vote on matters for which floor debate has ceased.” Its full text is available online.

Only Three Days Until U.S. Senate Decides on Filibuster Reform

On January 3, 2013, the U.S. Senate of the 113th Congress convenes for the first time. One of the first items of business will be adoption or amendment of its rules.

Prior posts have examined the so-called “speaking filibuster” reform proposal led by Senator Jeff Merkley of Washington State. Although I think it does not go far enough to prevent the minority Republican Senators from stopping action on the nation’s urgent business, the only way it can be adopted on January 3rd is by a simple majority vote of at least 51 Senators under the so-called “constitutional option” or “nuclear option.”[1]

This prospect last Friday prompted an even weaker reform measure from four Republican Senators (John McCain, Lamar Alexander, Jon Kyl and John Barrasso) and four Democratic Senators (Carl Levin, Chuck Schumer, Mark Pryor and Ben Cardin).

This so-called bipartisan plan’s main changes would allow the majority leader to prevent filibusters when the Senate starts debating legislation; reduce the number of filibusters when the Senate is ready to start trying to write compromise legislation with the House; ensure that each party would be allowed two amendments to each bill; and reduce the number of federal judgeships subject to filibusters, although not for top judges. This group’s proposal is not a rules change, but rather a “standing order” that would expire next term. In addition, although the proposal does not require a speaking filibuster, a document explaining the proposal said the leaders of the two parties would require it.

In order for this weaker “bipartisan” proposal to block the one from Senator Merkley, the former’s supporters have to obtain the backing of only one more Democratic Senator (in addition to the four that are its original sponsors) that would deprive Senator Merkley’s proposal of the 51 votes its needs to pass under the “constitutional option.”

One of their most promising targets for this additional vote for the weaker proposal has been Senator Dianne Feinstein, who has been reluctant to change the rules on a party-line vote because of concerns about what will happen if and when Democrats are once again in the minority. On yesterday’s “Fox News Sunday,” however, Feinstein said she is hopeful the bipartisan plan will work out, but she would not rule out the Democrats’ going it alone.

According to the Huffington Post, there are two other Democratic Senators that are possible endorsers of the more limited reform. They are Senators Baucus of Montana and Donnelly of Indiana.

Even if the “bipartisan” proposal could deprive a simple majority for the Merkley proposal, it appears doubtful that the “bipartisan” version could obtain the 67 votes it would need for adoption under the current rules requiring a two-thirds (or 67) votes to amend the rules. However, if the Merkley proposal is defeated, its backers could reluctantly support the “bipartisan” version as “something is better than nothing.”

Keep in mind that a broad coalition of nearly 50 progressive and labor organizations that have been actively lobbying for filibuster reform have rejected the bipartisan proposal, calling it a “recipe for continued Senate gridlock.”

Watch carefully the news from the Senate on January 3rd to learn what happens.

[1] This account is based upon the following: Assoc. Press, Bipartisan Senators Propose Curbing Filibusters, N.Y. Times (Dec. 28, 2012); Weissman, Lawmakers Suggest New Rules To Speed Up Senate Business, N.Y. Times (Dec. 28, 2012); Breaking the Filibuster, Huffington Post (Dec. 28, 2012); Johnson & Grim, John McCain, Filibuster Reform Opponents Offering Counterproposal, Huffington Post (Dec. 28, 2012); Kim & Everett, Bipartisan compromise pitched on filibuster, Politico (Dec. 28, 2012); McAuliff & Grim, Weakened Filibuster Reform Plan Revealed in Congress By John McCain, Carl Levin, Huffington Post (Dec. 28, 2012); Grim, Weak Filibuster Reform Offer Rejected By Progressive, Labor Coalition, Huffington Post (Dec. 29, 2012); Grim, Dianne Feinstein: Filibuster Reform Headed In Bipartisan Direction, But Nuclear Option Still On Table, Huffington Post (Dec. 30, 2012).

Update on Changing the U.S. Senate Filibuster Rule

Prior posts have discussed the internal Senate movement for reforming its filibuster rule that now requires 60 of the 100 Senators to agree to vote on the merits of most proposed legislation and confirmation of presidential appointments. Other posts have covered the pending federal lawsuit challenging the constitutionality of that rule.

There have been further developments on both fronts.

Internal Senate Efforts

Jeff Merkley, Democratic Senator from the State of Washington and the leader of the filibuster reform effort, is building a simple majority (at least 51 votes) for reforming the filibuster rule on January 3, 2013, when the new session of Congress opens. His basic proposal is the so-called “talking filibuster” with these major points according to his December 12, 2012 memo to fellow Senators:

If at least 41 Senators voted for additional debate on a legislative proposal, there would be additional debate.
Such additional debate would require at least one Senator to be on the floor presenting arguments on the proposal.
If there were no Senator present to speak to the proposal, the presiding officer would rule that extended debate was over, and the Majority Leader would schedule a simple-majority cloture vote to end all debate after an additional 30 hours of debate,

Approving such a change by a simple majority vote has been called “the nuclear option” or “the constitutional option.”

In response to a simple majority coalescing to support such a reform, some of the leading Senate Republicans (John McCain, Lamar Alexander, Jon Kyle and Lindsay Graham) are trying to convince Democratic Senators (Mark Pryor, Carl Levin and Chuck Schumer) who are reluctant to use the “nuclear” or “constitutional” option to embrace a more limited reform that could be supported by 67 Senators (the number required by the existing Senate rules). The exact nature of such a more limited reform has not been disclosed. Nor has the likelihood of enlisting 67 Senators to support such a more limited reform been assessed.

Moreover, many observers are skeptical about the ability of the “talking filibuster” proposal put forward on December 12th by Senator Markley to stop the dysfunctionality of the Senate. They point out that the proposal does nothing to prevent “holds” by individual Senators that prevent Senate action or to prevent the offering of amendments during a debate. Nor does this proposal ban filibusters on motions to proceed with consideration of a bill or nomination or require any Senator’s remarks to be germane to the matter at hand. Moreover, who doubts the willingness of the Republican Senators to talk and talk?

As we come closer to January 3rd, a failure to resolve the “fiscal cliff” stalemate may preempt attention to filibuster reform that day and politically eliminate the possibility of changing the filibuster rule by a simple majority.

Litigation over the Filibuster Rule

In May 2012 Common Cause, four members of the U.S. House of Representatives and three private citizens sued certain Senate officers. The complaint alleged that the filibuster rule was unconstitutional, and the defendants moved to dismiss the complaint on various grounds.

On December 5th the U.S. District Court for the District of Columbia issued an order asking that at the upcoming hearing on the dismissal motion the parties should be prepared to discuss all arguments set forth in the briefs and in particular to address Plaintiffs’ vote nullification theory of standing for the plaintiffs who are members of the House of Representatives.[1] The following are the parties’ arguments on that theory from their previously filed briefs:

According to the plaintiffs, the House member plaintiffs were in the majority when the House passed the Development, Relief and Education for Alien Minors Act (the DREAM Act) on December 8, 2010, only to have it die in the Senate when it subsequently failed to invoke cloture of the debate 55-41. So too the House member plaintiffs were in the majority when the House passed The Democracy Is Strengthened by Casting Light On Spending in Elections Act (the DISCLOSE Act), 219 to 206, on June 24, 2010 only to have it die in the Senate when a vote for cloture of the debate failed, 59-39 on September 23, 2010. As a result, it is contended, these plaintiffs’ legislative votes were nullified by the Senate’s filibuster rule, and they have standing to sue under Raines v. Byrd, 521 U.S. 811 (1997); Coleman v. Miller, 307 U.S. 433, 438 (1939); and D.C. Circuit cases.
The defendants, on the other hand, assert that the House members lack standing under Raines because they have not been individually deprived of something they are personally entitled to and because their votes would not have been sufficient by themselves to defeat or enact a bill if they had not been nullified.

The December 10th two-hour hearing itself apparently focused on the issue of whether the plaintiffs had standing to bring the lawsuit. Judge Emmit G. Sullivan said the case raised difficult issues and at the end of the hearing asked defense counsel to submit a short brief on certain questions. Later that same day, however, the court limited the request for an additional brief to whether the court could address the political question doctrine without reaching the issue of standing.

The defendants’ supplemental brief of December 11th cited precedents from the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit holding that a federal court may address the issue of lack of justiciability under the political question doctrine without first addressing the issue of the plaintiffs’ standing to bring the lawsuit.

The next day the plaintiffs filed their supplemental brief agreeing with that legal proposition. However, they argued, the case was justiciable on the grounds of U.S. Supreme Court cases holding that rules of the Senate or the House are subject to judicial review. In short, said the plaintiffs, there was no “political question” foreclosing the courts from considering this case.

We now await the court’s ruling on the dismissal motion.

[1] Perhaps related to the standing of the Congressmen in the filibuster case is the U.S. Supreme Court’s recent decision to review a case challenging the constitutionality of the Defense of Marriage Act in which a so-called “Bipartisan Legal Advisory Group” of Congressmen intervened to defend that statute, and the Supreme Court’s order for the parties in that case to address whether or not this Group has Article III [constitutional] standing in this case.”

A Citizen’s Response to Washington Skirmishing Over Changing the U.S. Senate’s Filibuster Rule

The U.S. Senate, in my opinion, is dysfunctional. One of the major sources of this failing is its filibuster rule that at least since 2009 has made it necessary to have the votes of at least 60 of the 100 Senators in order to do almost anything. I have railed against this rule and the way it has been used in many prior posts.

In anticipation of the new Congress’ convening in early January 2013, a group of Democratic Senators is developing support for modest changes to the filibuster rule. Senate Majority Leader Harry Reid is supportive of this effort. The exact nature of the proposed changes apparently has not been set, but would at least include banning the filibuster on motions to take up proposed legislation for debate on the Senate floor and motions to take Senate-approved legislation to conference with the House of Representatives’ negotiators plus requiring those invoking the filibuster rule in other instances to stand up and speak on the Senate floor.[1]

Under the standing Senate rules, any amendment to the rules requires a two-thirds (67) votes. In the next session of Congress in January this would mean that all 53 Democratic Senators plus the 2 Independent Senators plus 12 Republican Senators would have to vote in favor of any amendment. All Washington observers agree that such a vote could not be attained for the proposed change to the filibuster rule.

Therefore, the supporters of changing the filibuster rule argue that at the start of a new session of Congress the Senate may change or adopt new rules by a simple majority vote (51).

This possibility has caused some of the Republican Senators to go apoplectic. Senate Minority Leader Mitch McConnell of Kentucky said adopting this proposed rule change by a simple majority vote would be like throwing “a bomb into the Senate, have it blow up, and have everybody mad as heck.” Senator John Cornyn of Texas, the incoming Republican whip, said, this would “shut down the Senate” and was an abuse of power. Senator Tom Coburn of Oklahoma added that it would “destroy” the Senate and cause a severe backlash. Similar comments have been made by Republican Senators John Barrasso of Wyoming, Lamar Alexander of Tennessee and Senator Mike Lee of Utah. Such remarks, in my opinion, are absurd.

There are even some Democratic Senators who have expressed opposition or skepticism about changing the rules by a simple majority vote. Senator Carl Levin of Michigan said he preferred “not to use a mechanism which I believe is dubious.” Senator Bill Nelson of Florida said he did not like the simple majority-vote option. Newly re-elected Senator Claire McCaskill of Missouri stated that although she fully supported changing the rule, she was “not 100 percent in support” of the simple-majority-vote approach to doing do. Senator Daniel Inouye of Hawaii merely said he was studying the proposal. In addition, Democratic Senator-Elect Joe Donnelly of Indiana said he was concerned about not protecting the things that make the Senate unique.

Much of this Democratic opposition or skepticism is the concern that someday they will be in the minority and wanting to block Republican proposals. However, this concern implicitly endorses eternal stalemate and the current Republican agenda of opposing most federal government action.

What then can U.S. citizens do to support changing the filibuster rule? I propose the following:

Sign the electronic petition supporting the change.
Write an email or letter to the Senators and Senators-Elect who are the initiators of the petition thanking them for doing so: Jeff Merkley, Tom Udall, Kirsten Gillibrand, Tom Harkin, Amy Klobuchar, Jeanne Shaheen and Elizabeth Warren.
Write to other Senators and Senators-Elect (Angus King, Maria Cantwell, Tammy Baldwin, Martin Heinrich, Mazie Hirono, Tim Kaine and Chris Murphy) who have publicly stated the need for changing the rule and urge them to join the petition campaign.
Write to Majority Leader Harry Reid and urge him to press forward with changing the rule by a simple majority vote.
Write to Democratic Senators (Carl Levin, Bill Nelson, Claire McCaskill and Daniel Inouye) and Senator-Elect Joe Donnelly who have expressed opposition or skepticism about the simple-majority-vote approach and urge them to change their minds and support this approach for the filibuster rule.
Write to the Senators from your State and urge them to support changing the filibuster rule by a simple majority vote.
Write letters to the editors of newspapers and express your support for this effort.

Contact information, including email forms, for current Senators is available on the web. You will have to search for similar information for Senators-Elect.

[1] The recent developments discussed in this post are drawn from the following sources: Noah, Die, Filibuster, Die, New Republic (Nov. 16, 2012), http://www.tnr.com/article/politics/magazine/110215/die-filibuster-die;Weisman, The Senate’s Long Slide to Gridlock, N.Y. Times (Nov. 24, 2012), http://www.nytimes.com/2012/11/25/us/politics/new-senates-first-task-will-likely-be-trying-to-fix-itself.html?hp&_r=1&pagewanted=print&;Raju, GOP warns of shutdown over filibuster, Politico (Nov. 25, 2012), http://dyn.politico.com/printstory.cfm?uuid=ACE6831F-56E7-419A-8137-85D3D3E7BF5E; McAuliff, Mitch McConnell: Filibuster Fight Is An Unnecessary “Bomb” in the Senate, Huffington Post (Nov. 27, 2012), http://www.huffingtonpost.com/2012/11/27/mitch-mcconnell-filibuster_n_2200494.html?utm_hp_ref=politics; Bernstein, No, Republican obstruction isn’t because Harry Reid is mean to them, Wash. Post (Nov. 27, 2012), http://www.washingtonpost.com/blogs/post-partisan/post/no-republican-obstruction-isnt-because-harry-reid-is-mean-to-them/2012/11/27/232d2276-38dc-11e2-9258-ac7c78d5c680_blog.html; Collins, Happy Talking, N.Y. Times (Nov. 28, 2012), http://www.nytimes.com/2012/11/29/opinion/collins-Happy-Talking.html?pagewanted=print; Steinhauer, Resistance on Method for Curbing Filibuster, N.Y. Times (Nov. 28, 2012), http://www.nytimes.com/2012/11/29/us/politics/method-for-curbing-filibuster-faces-resistance.html?pagewanted=print.

Sign Petition for Reform of U.S. Senate Filibuster Rule!

U.S. Senator Jeff Merkley of Oregon is leading a campaign for a petition of public support for the Senate´s passing “meaningful filibuster reform as its first order of business when the new Congress begins” in early January 2013. He is joined in this campaign by five other Senators—Tom Udall of New Mexico, Kirsten Gillibrand of New York, Tom Harkin of Iowa, Amy Klobuchar of Minnesota and Jeanne Shaheen of New Hampshire–and by Senator-Elect Elizabeth Warren of Massachusetts.

I have signed this petition and urge all other U.S. citizens to do the same. All of us also should write to these Senators and Senator-Elect and applaud them for proposing the change while urging other Senators to join them.

I do so even though I do not like the proposed reform they are advocating. It calls for a new “Talking Filibuster” rule. It would retain a rule allowing a filibuster that would prevent voting on the merits of proposed legislation or other action unless 60 Senators vote to close debate, but would require filibustering Senators “to stand on the floor and make their case to the American people with a real talking filibuster!” (Now Senators can filibuster without making any speeches, and this makes filibustering too easy to invoke and too easy to abuse.)

Senator Merkley recently elaborated on this proposal. He said under “the proposed rules, if a cloture vote[to end debate 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.” Merkley also said the not yet completed proposed change might also include eliminating the filibuster on motions to proceed to debate and restrictions on filibustering efforts to send a bill to conference.

Making any change to the Senate rules at the start of a new session of the Congress permits, they will argue, adoption of new rules by a simple majority vote, rather than the two-thirds requirement (67 votes) under the current rules for their amendment. (We can anticipate that some Senators will oppose the proposed change and will argue that a two-thirds vote is still required under a long-standing Senate practice that the Senate is a continuing body and that its rules continue from one Congress to the next.) I strongly favor the argument that only a simple majority vote is necessary for these changes when the new Congress meets for the first time.

Perhaps this group of reformers believes that their modest change is the only one that stands a chance of obtaining at least 51 votes for adoption. If so, then this political judgment must be respected by the citizenry even though, in my opinion, it is not sufficient to stop abuse of the filibuster. Indeed, as discussed in prior posts, I believe this rule should be eliminated in its entirety.

The seven organizers of the petition apparently have the important backing of the current Senate Majority Leader, Harry Reid of Nevada, who said at a November 7th press conference that filibuster reform will happen in the new Congress. Reid is proposing some modifications to the filibuster rule — most notably to eliminate the possibility of filibustering efforts to begin debate on legislation. “I think that the rules have been abused and that we’re going to work to change them,” Reid said. “We’re not going to do away with the filibuster, but we’re going to make the Senate a more meaningful place, we’re going to make it so that we can get things done.”

Changing the filibuster rule also has the support of seven other Senators-Elect: Angus King of Maine, Maria Cantwell of Washington, Tammy Baldwin of Wisconsin, Martin Heinrich of New Mexico, Mazie Hirono of Hawaii, Tom Kaine of Virginia and Chris Murphy of Connecticut.

Earlier posts have discussed my criticism of the filibuster as well as the pending federal court lawsuit by Common Cause challenging the constitutionality of the rule.