Filibuster reform is in trouble, proponents warn, at the hands of a scaled-back proposal they say would enhance rather than diminish the Senate minority’s power to obstruct.
Sen. Jeff Merkley (D-OR) says his proposal to force filibustering senators to occupy the floor and speak ceaselessly could be in jeopardy, thanks to a new bipartisan filibuster package that he and his ally Sen. Tom Udall (D-NM) argue would do more harm than good to the cause.
“Normally the majority party has a right to determine the agenda of the Senate. They don’t have the right to pass bills. That’s up to the majority of the Senate,” Udall said on the floor Wednesday. “But then the majority leader should have the right to bring a bill to the floor of the Senate. And that has been denied over and over again by the minority party. That’s wrong.”
The dueling proposal, spearheaded by longtime Sens. John McCain (R-AZ) and Carl Levin (D-MI), would make it somewhat tougher for the minority to block debate on legislation but also guarantee them two amendments on bills, regardless of germaneness or relevancy to the main topic of the legislation.
“It’s a step backward rather than a step forward,” a Merkley aide said. “It doesn’t attack the core of the matter. It doesn’t include a talking filibuster. And it allows the minority to kill legislation with poison pill amendments. It keeps all the tools minority has to obstruct and then gives them another tool.”
Early in December, Senate Majority Leader Harry Reid (D-NV) said filibuster reform will happen with or without Republican support, and Merkley-Udall was the plan on the table. But the unveiling of the McCain-Levin late December — and the optics of a partisan versus bipartisan solution — scrambled the game for reformers.
Merkley intends to officially introduce his rules reform package Thursday, but Reid hasn’t made up his mind about which option to go with.
“Senator Reid is negotiating with Senator McConnell with the goal of producing a package of reforms that will make the Senate work more efficiently,” said a Senate Democratic leadership aide. “While these negotiations take place, Senator Reid will preserve the option to make rule changes with a simple majority vote.”
Here’s the good news for reformers: they have time to build support for the plan, under which they could push through a rules change with 51 votes on the first day of the new Congress. But the “first day” will technically continue through Jan. 22 because the Senate intends to recess rather than adjourn until then. And Merkley is confident of winning the support of incoming Democratic senators, particularly Elizabeth Warren.
If Reid decides to pursue McCain-Levin instead of the talking filibuster plan, “Senator Merkley will encourage others to vote against the bill,” his aide said. It’s not yet clear that proposal has the super-majority of votes required to pass, but multiple Democratic senators have said there are at least 51 votes for reform.
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.