Oregon Sen. Jeff Merkley, a Democrat, is trying again to improve the Senate by changing the rules for filibusters.
If a lone senator wants to stop legislation from moving forward under current rules, all the senator must do is essentially tell the bill’s sponsor. The filibustering senator can then go out to dinner.
He doesn’t have to drone on for hours on the Senate floor. The bill is dead unless a supermajority of 60 votes — a cloture vote — stops the filibuster. Requiring 60 votes can make filibusters a powerful tool for a political minority.
Merkley doesn’t want to eliminate filibusters — just make them harder to keep.
After a traditional cloture vote failed, Merkley’s change would require senators to publicly declare their filibuster, rather than be able to do it in secret. Merkley would require a filibustering senator to actually be on the Senate floor and talk. And if no senator stepped forward to continue the debate on the floor, the Senate could end it with only 51 votes, not 60.
Merkley attempts on his website to bolster his argument with history. “The Senate should get back to the role it historically played: deliberating over ideas, weighing proposals, and voting, up or down,” it says.
Oh, the good old days when the Senate was like that, but the good old days were not all like that. In the early days of Congress, members of both the House and the Senate could filibuster without limits. It wasn’t until 1917 that senators adopted Rule 22 allowing the Senate to end a debate with a two-thirds majority. That was reduced to three-fifths in 1975.
Merkley’s right that a Senate mired in filibuster battles can be bad. A Senate without filibuster battles can also be bad.
The longest continuous filibuster on record in the U.S. Congress goes to deceased South Carolina Sen. Strom Thurmond. Thurmond, then a Democrat, filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957. But when the Republicans were in power in the Senate in 2005 and 2006, Democrats used the filibuster to halt movement on a bill that would limit abortion rights.
Would Democrats have argued for a weakened filibuster then?
That said, there is, of course, a danger to a minority party relying on filibuster. The party can earn a reputation for sheer obstructionism. The Senate could lose its relevance. If bills are stopped in the Senate, the White House can turn instead to executive orders to compel policy changes.
We think Merkley has part of this reform right. Senators should be public about filibusters and out on the floor explaining themselves.
Democrats or Republicans, though, will likely regret the day they are the minority party and only 51 votes ends debate on — say — a change in abortion law.
We’re also not sure requiring a senator to speak for hours on the floor will fix much. As Senate historian Donald Ritchie said in 2010: “Asking a senator to speak for a long time isn’t a punishment. They love to do that.”