The key senators behind the push to reform the filibuster were Tom Udall of New Mexico and Jeff Merkley of Oregon. Their idea was to force "talking filibusters" in which obstructing senators would have to go to the floor of the Senate and actually talk. If they stopped talking, the filibuster is over. Reid and McConnell's deal does not include a talking filibuster, but both Merkley and Udall voted for it anyway. I spoke with Merkley Friday morning about the compromise. A lightly edited transcript of our discussion follows.
Ezra Klein: What do you think of the deal?
Jeff Merkley: There are two pieces I’m excited about. First, the Senate made a decision to change its rules. There was bipartisan recognition that the Senate is dysfunctional. The second positive is a tremendous number of folks have been animated during this campaign and are saying this is less than I hoped for but I can accept it as a test. If it doesn’t end the paralysis, I’ll be back in this battle. That sentiment, I think, is a very powerful outcome that sets the stage for evaluating whether the modest steps we took yesterday will have an impact.
EK: Tell me more about that test. What metrics will you use to decide whether the paralysis has stopped?
JM: It's important for folks to understand the current rhythm of getting a bill to the floor. Say on a Monday someone has a request to bring it to the floor. Then another senator objects. We can't vote to overcome that objection till Wednesday. Then we can’t start debate till at least Thursday. So a whole week is lost. This is a deadly issue. Majority Leader [Harry] Reid has made it his main goal to address this. So six months from now we’ll be able to turn around and ask whether it’s a lot easier to get on bills.
EK: You said a moment ago that the Senate chose to change its rules. But another way of looking at this deal is the Senate chose not to change it rules. It didn't use the constitutional option or use the process from Rule XXII. Instead, it uses standing orders, some of which will expire in two years. Am I misunderstanding that?
JM: There were two resolutions last night. One was a standing rule and one was a standing order. An order is the functional equivalent of a rule. It’s part of the rules structure and has the same force and effect as a rule. On the standing order side they put in a two-year terminator clause, and that’s a signal that this is a test, and we'll be looking to see if it worked.
EK: Much of the real energy behind this push for filibuster reform came back in May when Majority Leader Reid went to the floor and said you and Sen. Udall were right to try and change the rules in 2010. That made it seem like he really agreed with your package. In the end, though, the debate played out more like 2010 all over again, with Reid and McConnell cutting a deal on their own. So what happened between May and now?
JM: Though the steps we took last night were modest, they are significantly different than last session's gentleman’s agreement. They touch on a host of topics, they provide structural tools on the motion to proceed, they consolidate three filibusterable motions into one when we go to conference, and the big impact is cutting down on the hours of post-cloture time on nominations. That could, potentially, greatly increase the number of nominations we can get through the floor. So I think it is a substantially different dynamic than two years ago.
But let me come back to your core question of what changed. There are two ways of looking at the talking filibuster. My way is as a form of unanimous consent. Right now, you can bypass the filibuster with unanimous consent. If no one objects, it’s a simple majority vote. My way of viewing the talking filibuster was as a way of doing unanimous consent with your feet. You object by going down and talking. But others framed it differently. They said it’s not unanimous consent, they said it was an expedited path to 51 votes and therefore it alters the fundamental nature of the Senate. They saw it as bypassing the 60 votes. I just disagree. But I wasn't able to convince some of them.
EK: What was the specific nature of the disagreement. As you know from our previous conversations, I saw your reforms as, if anything, doing too little to alter the 60-vote threshold. But when I spoke to Reid, he also said he saw them as a move toward a 51-vote Senate. What was the core of that disagreement?
JM: You might have a better feeling for that than I do from your interviews. You and I have had this conversation where I tried to convey how significant of a change this was in how senators view the floor. Senators right now have the prerogative to obstruct with no effort, and we were asking that that be taken away. No longer do you get to obstruct unless you're willing to expend enormous time and energy. That’s a hugely different proposition from the one senators have had over the last few decades.
EK: What did you think of the idea to reverse the burden of breaking the filibuster and make it so it's the majority that has to provide the 41 votes in order to keep a filibuster going? That seems like it got at a lot of your interest in making the minority work for their obstruction, particularly if you assume those votes could be scheduled inconveniently.
JM: I advocated very strongly for us to adopt the 41-vote strategy and my team prepared a concrete form of that, but I want to note, it’s an idea Al Franken put forward. But here’s the thing: There’s two possibilities with this. The first is that those who are absent automatically count for closing debate rather than continuing debate. I think that’s right, there needs to be 41 affirmative for those who are are filibustering. You brought up a different issue as to whether you can schedule difficult votes in terms of timing, and that’s not how most of us view it. I’m not in favor of that, and we’d use coherent, well-publicized times for these votes, just as we do now. Otherwise, people wouldn’t consider it to be fair.
EK: One significant question here is whether the deal Reid struck with McConnell will stop Republicans from trying to weaken the filibuster the next time they have a majority across the government. One camp argues that by making these impassioned arguments in favor of the rule and cutting these deals with Reid, they'll be more reluctant to change the rules when they're in charge. Do you think that's right?
JM: No. I don’t think the Republicans will be reluctant to use 51 to change the rules; 2005 to me is really the evidence of that. They said they were changing the rules to strip the filibuster of judicial nominations, and they didn't only because Democrats said they wouldn’t filibuster so Republicans didn’t have to change the rules. So they fully demonstrated they will change the rules.
The best precedent is for us to propose changes that facilitate debate and are fair to the minority. McConnell made two arguments: That this is a power grab and it silences the minority. I’ve never seen the minority leader’s arguments have so little traction because they’re so clearly false. Tom Udall and I were determined to not propose something we wouldn’t see as fair if we were in the minority, and I think we stayed true to that.
One other thing. You’ve noted there’s this dynamic between older senators and younger senators. I think the reason Tom and I are very much in this battle the way we are, it’s because we saw the Senate when it worked. His father was interior secretary, and he grew up around Congress and was very aware of the dynamics. I saw the Senate when I worked in D.C. in the 1980s. I cannot imagine I would’ve been in the fight this way if I didn’t have the perspective of seeing the Senate when it was a working legislative body. And of course Tom Harkin is so much in this battle because he remembers a Senate that worked, too.