Oregon’s Jeff Merkley on the Filibuster

I have long said that we need to change the Senate rules  At the last easy opportunity to do so, the Nevada Leg Hound, Harry Reid, humped the GOP leg before rolling over and playing dead, deciding on a “gentlemen’s agreement” with Republicans instead of a floor vote to change the rules.  Gentlemen’s agreements have no effect when made with those who are not gentlemen.  The Republicans abided by the “gentlemen’s agreement” almost long enough for Reid to announce it.  Jeff Merkley (D-OR), for whose campaign I am proud to have been a volunteer, agrees that the rules of the Senate must be changed.

…At no time did our Founders envision that the Senate would require a supermajority to pass legislation. Indeed, the Constitution requires a supermajority only for very limited purposes, including the ratification of treaties and the override of a presidential veto.

Nor did the early Senate adopt any supermajority requirements by rule. Senators extended the courtesy of extensive debate as a basic principle of deliberation, but they passed all legislation by simple majorities.

While some were tempted to talk a bill to death by not agreeing to a final vote, this temptation was moderated by working relations — historically, the Senate had many fewer members than it does today — a deep commitment to the principle of majority rule, and the prospect that if individuals were to abuse the process, the Senate could respond by adopting a rule change with a simple majority.

Many Founders saw the possibility of a supermajority requirement for passing bills as destructive, inappropriately subjugating the wisdom of the many to the wisdom of the few. Alexander Hamilton observed in the Federalist papers that a supermajority requirement has a “tendency to embarrass the operations of government” and would generate “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” This characterization matches how many Americans perceive the Senate today.

The duality of extended debate and majority decision-making was seriously tested throughout the 1800s, but it wasn’t until 1917 that the Senate adopted a rule for formally ending debate.

To counter the possibility that a few would seek to win through obstruction what they could not win through persuasion, the Senate agreed that debate could be ended by a supermajority vote. This process, known as “invoking cloture,” initially required a two-thirds majority. That was later changed to three-fifths. Moreover, rule changes were now subjected to a supermajority threshold, eliminating a significant deterrent to abuse of the process.

This new cloture rule was rarely exercised. Between 1917 and 1960, a cloture motion was filed only 30 times.

Over the past 50 years, however, the Senate’s deliberative social contract has unraveled. After Southern Democrats seized on supermajority obstruction to block voting rights legislation, senators started employing the tactic broadly. The number of cloture votes grew from 26 in the 1960s to 136 in the 1980s to 367 in the past decade. The constitutional and historical norm of decision-making by simple majority has been replaced by a routine requirement to assemble a supermajority of 60.

As predicted by Hamilton, this super­majority barrier has fueled the politics of paralysis. Getting anything done in the Senate is like wading through knee-deep molasses. The difference between today and the Senate of the 1970s, when I was an intern for Sen. Mark Hatfield, is stark. A Senate that routinely debated amendments from both sides and decided almost all issues by simple majority is gone.

Now, united minority caucuses, backed by powerful interest groups, seek to use the supermajority requirement to block action and discredit the majority.

The resulting paralysis and partisanship hurt our nation. They are probably the largest element behind the low opinion of the Senate. Our citizens expect more. The Senate must be able to respond to the major challenges of our time, including creating jobs and reducing the debt.

That is why Sens. Tom Udall, Tom Harkin and I, among others, fought to change the Senate rules in January. One key change would have created a protocol for amendments so that both minority and majority amendments could be debated.

Another key provision was to replace the “silent filibuster,” in which a single senator can block a simple-majority vote on an amendment or bill, with the “talking filibuster” — requiring those who wish to block final action to make their case on the floor, before their colleagues and the American people.

This would force those senators holding up a bill to defend their obstruction and let the public decide whether they are heroes or bums. And by requiring senators to invest time and energy, it would strip away a large number of the frivolous filibusters… [emphasis added]

Inserted from <Washington Post>

Jeff did a wonderful job explaining the history of and need to change the Senate rules for supermajority, but glossed over what his proposal would have actually done, other that requiring the debate of minority amendments.  Instead if requiring the majority to have 60 votes to invoke cloture, it would require the minority to have 41 votes to block cloture, and keep those 41 votes in the chamber continuously.  I would add to that a one week maximum delay before a majority vote must be called.

As for Harry Reid, if Democrats can keep the Senate in 2012, we need a Majority Leader with the spunk to go toe to toe with Republicans, not hump their legs, roll over, and play dead.  Perhaps one of you, who are skilled in the art of shepherding petitions, which I am not, might want to put one together to that effect. to launch after the first of the year.  I would suggest Bernie Sanders.