Sen. Jeff Merkley had an early warning that Harry Reid’s change of heart on filibuster reform was coming. “I was the presiding officer of the Senate several weeks ago,” Merkley told me in an interview. “Sen. Reid came to close, we were the only ones in the chamber. At that point he made the comment, something like ‘I’m embarrassed to say this in front of the Senator from Oregon, but I argued we could fix (whatever it was the Senate was working on that day) with an agreement between the Majority and the Minority Leader, and I was wrong.”
So Reid’s more widely recognized comments last week, that the proponents of Senate rules reform were right, represented a repetition, in a sense, not a spontaneous moment of anger. Nevertheless, Merkley was pleased that the Majority Leader was coming around to his way of thinking on the subject. “It felt good that the Majority Leader publicly declared that there’s a problem that has to be addressed,” Merkley said. “It’s been a continuous affliction of the minority blocking debate on legislation.”
It’s one thing for Reid to admit the problem, and another for him to act on it. Reid has publicly committed to taking a new look at the issue next January, when there is a small window of time for the Senate to reset their rules. Some have argued that this issue could be pressed right away, with an ultimatum to move on Presidential appointments or risk the “nuclear option,” where a majority of the Senate can change the rules mid-session. There’s even an effort afoot to have the filibuster declared unconstitutional by the courts, with a high-powered attorney attached. And the question of whether anything will be done must collide with the reality that control of the Senate is up for grabs in this year’s elections.
By this time two years ago, Merkley and his partner Tom Udall had already been putting in place their set of reforms, building a coalition for change. That effort failed in January 2011. What are Merkley and his colleagues doing this time around? “My hope had been to find a group of Republicans to join us on specific reforms,” the Senator from Oregon told me. “Right now the outcome of the Senate is in doubt, which could be a helpful moment to get us out of the mode of which party these reforms help. I’ve been holding some conversations in that regard” with selected Republicans, Merkley said.
He added, “A point Tom and I made, the things we were proposing, we could support whether in the majority or the minority. It included a reform that the minority sought, a protocol for amendments,” so that the Majority Leader would not just block attempts by the minority to legislate through “filling the amendment tree” or other measures to stop a vote.
Of course, a micro-miniature version of the Merkley-Udall filibuster reform plan was instituted as a “gentlemen’s agreement” in 2011. It included one of the five-point plan that Merkley and Udall sought, the banning of secret holds (Merkley says that, as far as he can tell, when a Senator objects to unanimous consent these days, you can usually find out who’s doing it). In addition, the minority agreed to force cloture votes on the motion to proceed to legislation, as long as the majority allowed for more room for amendments. This has failed miserably. Filibusters are up in this session, amendments have gotten less germane to the legislation at hand and are frequently used to send messages or embarrass vulnerable lawmakers, and legislating has basically ground to a halt. “No observer could look at the Senate today and say its conduct is any different. If anything, it’s worse,” Merkley said.
So far, his sought bipartisan coalition for rules reform has not come together. But Merkley plans to keep going. “I say it at every opportunity,” he said. “I fully intend to press this case vigorously.”