Sen. Angus King on filibuster reform and life as a Senate independent

February 2, 2013

Sen. Angus King (Washington Post Video)

Angus King is the junior United States senator for Maine. An independent who caucuses with Senate Democrats for committee purposes, he previously served as the state's governor from 1995 to 2003, and succeeded Olympia Snowe at the start of this year.

Filibuster reform was a key plank in his Senate campaign platform, and he was involved in the negotiations that culminated in the first changes to the filibuster since the 1970s (albeit less than Tom Udall and Jeff Merkley, the two senators leading the charge, wanted). He called me from his house in Maine on Friday; a lightly edited transcript follows.

Dylan Matthews: How, as a new senator, did you get involved in the filibuster discussions?

Angus King: I initially got involved because of the reason I ran.  I used to tell people that I’m running for the opposite reason that Olympia Snowe quit. When she announced her retirement, she didn't say she wanted to spend time with her family, do other things, or so on, it was, "I’m leaving because this place doesn’t work, it was utter frustration."

My response was that if someone of her stature and experience and seniority can’t get anything done, maybe we need to try to do it in an entirely different way. That was the principal motivating factor in my running, and of course a big part of the dysfunction has been the filibuster and the misuse of the filibuster. You know the numbers. I believe Harry Reid said there was one filibuster in the entire time LBJ was president. We're up to 391 [for Obama]. Clearly that’s a problem. That was one of the major things I said I wanted to do.

I was appointed to the rules committee, but that didn’t really play into what happened this time, because it all happened so fast. If you’re going to do the Constitutional Option, it has to be on the first legislative day which can be on the first weeks. There were lots of discussions -- I had discussions with something like 30 senators before I was sworn in, and the filibuster arose in practically all those discussions. I went back and forth with Gary Myrick in Harry Reid's office, and so forth.


Sen. Jeff Merkley, who led the effort to reform the filibuster. (The Washington Post)

Tom Udall and Jeff Merkley had emerged as the leader of the reformers by that point, no?

They and Tom Harkin were the principal advocates of a fairly far-reaching change, and there were really two issues going on at once, and maybe only people inside Washington care, but there was the filibuster issue, but almost as significant was how do you change it. Is it going to be a two thirds vote according to the rules, or the 51 vote Constitutional Option (or Nuclear Option, depending on how you feel about it)?

There’s a little flower that grows in northern England, and it’s named for King William, and on the English side it’s called Sweet William and on the Scottish side it’s called Stinking Billy. We called it the Constitutional Option and those opposed called it the Nuclear Option, because it was going to blow up the Senate. So one issue was a concern about the use of the Constitutional Option, of changing the rules by 51 votes.

Certainly the Republicans were dead-set against that, though they had proposed it themselves in 2005. They said if this is done, everything stops. John Boehner said every Senate bill will be DOA in the House, and because the Senate operates on unanimous consent, there was some talk that everything would grind to a halt. If things really went awry, you couldn’t get committees appointed, you couldn’t do much of anything.

There were senior Democrats, the most prominent was Carl Levin, who’s chairman of Armed Services, who had grave reservations about the Constitutional Option. And I think they were in favor of some reform of the filibuster, but they were nervous about really eviscerating the filibuster because they had been in the minority and they were quite passionate that this was something that needed to be done with some care. Today’s majority could be tomorrow’s minority and that was an element in the discussion, so I think what happened was that Merkley and Udall had pretty close to 51 votes, they might have had 51 votes even without some of the Democrats like Carl Levin, and that empowered Harry Reid to negotiate something.

It didn’t go as far as many others wished, but it was the first substantive change in the filibuster rules since 1979. The other piece was that in December there was a bipartisan group — Carl, Pryor, Schumer, Cardin on the Democratic side and then Kyl, McCain, Graham  and Alexander — they negotiated something and that became the basis of the negotiation between the leaders. To me, it was good news and bad news. The bad news was, I don’t think it was as strong a reform as was called for. I was in favor of the talking filibuster or something like it, that would require people to hold the floor or some other version of that idea. That’s the bad news from my point of view.

But something was done. We got limitations on the filibuster on motion to proceed, collapsing three motions to take a bill to conference. A lot of the filibusters have been on the motion to proceed, so now at least we can get to the bill on the floor. And I think it’s significant that it includes the right of the minority to submit amendments. It’s less likely to have filibusters if Republicans have amendments that get them invested. The other piece of good news was that this entailed bipartisan discussion and negotiation, which is something that hasn’t happened in recent congresses. Talking, compromising, listening to each other is a positive development, and who knows if that will carry over. Already we’ve had a bipartisan group of senators coming to consensus on immigration.

So that’s the story as I saw it. Without Merkley and Harkin and Udall pushing so hard, I don’t think anything would have happened. Their initiative empowered Harry Reid, who I think was pretty frustrated and wanted to do something. He was prepared to go with the Constitutional Option had nothing been worked out with Mitch McConnell. That’s what he said.

Harry Reid told my colleague Ezra Klein that the deal breaker for him was that he thought the talking filibuster would mean giving up on the idea of a 60-vote Senate. What do you say to that?

 Nobody was proposing that. Tom Harkin had a proposal that he’s introduced for 20 years that would ratchet down the cloture threshold, but Udall and Merkley didn’t propose it. Franken had an interesting proposal, and I think it was going to be in Harry’s 51 vote proposal, that had a deal not been made, that instead of 60 votes the opposition had to have 41, to put the burden on them rather than on the proponents. So there were some variations.

I had an interesting experience the night all this happened, of watching the reports of it on CNN, Fox, and MSNBC, and that’s an experience in itself. But a lot of the liberal commentators, the MSNBC commentators were very dismissive of what was done, that it was a cave-in, that we need to get Obama’s agenda through. I wish they would have heard, and I don't want to betray any confidences, but there were some very progressive, very liberal senators who said we want to be really careful with this years. Five, six years ago there were serious proposals to privatize social security or voucherize medicare and we wanted to have that to protect us.

I wasn’t fully persuaded, I was in favor of the talking filibuster, but it reminds me of that scene in "A Man for All Seasons" where Sir Thomas More’s nephew is very rapid about getting rid of any laws that obstruct his uncle's ability, and More says, "If you had to cut down all the laws of England to trap the devil, would you?" And he says yes. And More says, "If you cut them down and the devil turns on you, what could you turn to to protect you?"

It may be important to us and our constituents. The problem is not the filibuster, it’s the use. The problem is that it has become a de facto 60 vote body. That isn’t in the constitution, and it wasn’t intended by the Framers. In fact it was rejected by the Framers, if you look at the Federalist Papers. There were proposals to make it a supermajority institution, and they didn’t do it. They did it in a bunch of places, but not just to pass legislation.

The idea that it’s a routine part of the process, that you need to have 60 votes, I have a problem with that. If that is going to be the situation going forward, we’re going to need to have a national discussion about that. It’s a fundamental change in the mechanics of legislation. We grew up, I suspect I'm a little older than you, but when we grew up the filibuster was used once every five years. It was usually on something of great national interest, in the 60s it was almost always on civil rights, but it wasn’t used on the banking bill.

That’s been the change in the practice that I think is disturbing, and my reaction as a new senator is that I think we did something important, and I’m going to watch and see how it works, and if it works we will have really done something, and if it doesn’t I’m sure Merkley and others will be back with another proposal.


Sen. Barbara Boxer, one of the most skeptical members of the Democratic caucus when it came to filibuster reform. (Paul Sakuma/AP)

Were there discussions about doing more on appointments than the deal eventually included?

If there were, I wasn’t privy to them. There was, again, a recognition around the Democrats that times could change, and they didn’t want to give up the authority to slow those things down. If I heard the story about Washington and Jefferson and the teacup once I heard it a million times, but my response was that they wanted the Senate to cool things down, but not to put them in a deep freeze. I didn’t hear discussion about going to the higher level justices, for example.

Did you know about the other set of negotiations at the time?

 We knew that was happening, I knew. I don’t want to overstate my role. I don’t want to make it sound like, "King, who was at the center," but I was in touch with Udall and Merkley in mid-December and we had some phone conversations and we kept in touch with Harry Reid’s staff. But yes, I can’t remember exactly how I learned about it but it may have been at the caucus, where Harry said I’m working on discussions with the leader, I’ve made a proposal, he’s made a counterproposal, but if it doesn’t work we’re going to go with the 51 vote option.

I think he meant it. I think Harry was very frustrated. He was most concerned about the motion to proceed. That was what was frustrating him. He was prepared to go with a proposal on a 51 vote basis. And I think McConnell must have realized he was serious about it and they ended up making  deal. I think it was a pretty favorable deal in terms of the substance of what happened. Some didn't like it but I didn’t see it as a sellout. By definition, if you do something on a bipartisan basis you’re going to compromise.

A lot of the justifications for keeping the filibuster were couched in very tribal tones, of "Wait until this helps Democrats." Did that have much pull for you, as an independent?

 It made me stop and think that I may be in a position on some issue where I really feel passionately about it, and I think it would be inimical to the public, and I want to slow it down and stop it. An example would be the proposal to voucherize Medicare. So it was a consideration.

Now, I had a fascinating insight into this, because I spent, I was in Washington for a week right after the election when they had the official orientation, and I started setting up meetings with individual senators. The next week, there were no official functions, so I was just meeting one on one with senators. I met with 30 senators, 11 Republicans and 19 Democrats. Every conversation involved the filibuster.

Neither side treated me as the enemy. It wasn’t a Democrat meeting with Roy Blunt or Mitch McConnell, it was this peculiar guy in between. Same thing with the Democrats, even though they knew I was caucusing with them. What was fascinating was to get each side’s perspective of what was happening and why. The Democrats thought the Republicans were abusing this rule, and the Republicans were saying the reason we’re filibustered is that they won’t let us submit amendments, and we’re being frozen out. And the Democrats say yeah, but the Republicans are putting forward mischievous amendments to embarrass Democrats.

I felt like I was mediating between the Hatfields and the McCoys and nobody could remember who fired the first shot. I communicated this to Merkley and Udall, that if there was a package to come forward I wanted it to support a minority’s ability to submit amendments. It was a fascinating insight for me to hear and see the arguments of both sides, and I was treated, I don’t know, it would be an overstatement to say I was treated as a neutral, but I was treated as a member of neither camp, so I was able to have a deeper understanding of what was going on.

I wanted to bring up another proposal you had during the campaign, which was to tie the expiration of the Bush tax cuts to some objective measure of economic health, like GDP or unemployment.

Someone called that the best idea of the campaign.

Yeah, that was me.

 You are clearly a man of great wisdom and insight.

 Arguable. But now that the Bush tax cuts are permanent in large part, do you have plans to apply that elsewhere?

Well I’d like to see, it if we are moving forward with this budget stuff, the problem I had as you know is that we create these artificial deadlines that have nothing to do with the objective reality, so you may have tax cuts expiring at exactly the wrong time. It’s not an idea I’ve given up on. You create an automatic trigger instead of a trigger that creates a crisis. If the unemployment rate drops, the tax cuts expire, and then there’s no crisis.

That’s how we did it in Maine, before I took office the sales tax was raised but it said that if revenues rise more than 8 percent then the rate falls half a point. I thought, well gee, maybe that’s a better way to do it. I haven’t forgotten about it. It’s a question of where to put it. I’m on the budget committee, and hopefully we’re going to have some discussions in the next few weeks about sorting the budget out, and hopefully do this without a crisis.

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