It passed with little attention amid the fiscal cliff fighting, but on the Friday before New Year’s Day, Dem and GOP Senators released a package of reforms to the filibuster that has been watered down in order to gain bipartisan support.
But the proposal — spearheaded by Senators Carl Levin, Chuck Schumer, John McCain, and others — is so weak that one of the leading filibuster reformers in the Senate, Jeff Merkley, tells me he will vote against it if it comes to the floor, and will urge other liberal colleagues to do the same.
“If Levin-McCain comes to the floor in its current form, I’ll vote against it,” Merkley told me today. “I’ll certainly encourage others to oppose it.” Indeed, Merkley adds that the current package of reforms would further enable minority obstructionism — and constitutes a gift to Republicans.
That Merkley is sounding the alarm in this fashion suggests the prospects for real filibuster reform may be very bleak. If Merkley can round up some liberal votes against the final package, that might not stop it from passing, but it could cast real doubt on the seriousness of the proposal.
The problem is that the compromise nixes one of the ideas sought by Merkley and other reformers: The so-called “talking filibuster,” which would force the minority to play a much more public role in blocking legislation, which in theory would discourage it because it would reveal obstructionism to the public.
Instead, the watered down set of reforms would require senators to take the step of blocking legislation on the floor of the Senate — which is now not required — but not to continue talking. The idea behind crafting a set of reforms that can win bipartisan support is that Dems won’t have to pass it with the so-called “Constitutional option,” i.e., a simple majority vote, something that senior Democrats have balked at doing.
But the result of going this route in the name of bipartisan comity will be filibuster reform that is borderline meaningless, Merkley said. He argues that unless Senators are forced to fully carry out the filibuster in the eye of the public and media, there will be no political price or disincentive for obstructionism.
“Currently, the powerful tool the minority holds is the secret silent filibuster, which can secretly kill bills,” Merkley says. “This does nothing to solve the heart of the problem.”
Merkley adds that under the current proposal the minority will have two additional amendments on every bill — a response to the demands of Republicans who are angry of being deprived of the right to offer them. The amendments, Merkley worries, will give the minority an easy way to insert poison pills into legislation, an added tool of obstructionism. “This gives even more power to the minority,” Merkley says.
Democrats familiar with the situation say they expect Harry Reid to privately negotiate a final package of reforms with Mitch McConnell, with an eye towards bringing it to the floor as soon as tomorrow. An alternate scenario, I’m told, is that Dems recess tomorrow, which would extend the current legislative day (the first of the new Congress), allowing reforms to be introduced when the Senate returns from recess in several weeks.
Sources say one thing under consideration is voting on the package by “standing order,” which would mean it only needs 60 votes to pass (rather than the two thirds usually needed for non-Constitutional option rules change). Under this procedure, the rules would expire at the end of the new Congress.
All of which is to say: The time for real filibuster reform is fast running out. Indeed, from the point of view of reformers, we may be about to take a step backwards. And given how fleeting the political will is for this kind of reform to begin with, that bodes terribly for the prospects of real long term change.
UPDATE: Another source confirms that Reid and McConnell are now in direct talks over what package of filibuster reforms to vote on, but I’m told Reid is “not taking anything off the table.”