Before heading into a caucus meeting, Sen. Jeff Merkley (D-Ore.) and Sen. Tom Udall (D-N.M.) briefed reporters today on ideas for introducing a "constitutional option" to reform the Senate in the next session of Congress. The two-step plan, roughly: on January 5, when votes are taken to organize the Senate, get 51 members to agree to adopt new rules, then get 51 votes on a package that reforms cloture so that objecting to legislation forces continuous debate.
"I think all of you have observed that we've done no appropriations this year," said Merkley, setting up fundamental filibuster reform as a necessity, good for all sides. "It's very much damaging our advise and consent function."
Udall argued that the filibuster could be reformed because "there have been precedents by three vice presidents that you can cut off debate and move to a majority vote." He had a caveat: "We don't want to make any rules changes that would hurt our ability to speak out in a minority situation."
That led Merkley to explain why the senators wanted to force continuous debate after cloture votes. When a cloture vote fails right now, it fails; that's it. Senators head on to their next pieces of business.
"When that happens, under current rules, we do not have ongoing debate," said Merkley. "There's nothing to compel senators to engage in the debate that they've said they want to have. There are a number of potential rules that could be used, but all of them are trumped by some existing mechanism... The advantage of continuous debate is that it honors the premise of the cloture vote. Here is my position. Here is why I'm not ready to vote yet. Here is my case. Senators can stand on the floor to make that case, and their colleagues can say 'you're a hero' or 'you're a bum.'"
I asked Merkley whether the incoming class of senators had been talked to, and how much support for reform was coming from them. Democrats who have balked at filibuster reform, like Chris Dodd and Robert Byrd are being replaced or have been replaced by freshmen without a particular obsession with Senate history
"Folks who are arriving," said Merkley, "having been around institutions that are functioning, they particularly notice the broken nature of the Senate. There are folks against the aisle who've raised concerns that are similar -- Senator Dan Coats has raised this concern. The advantage of being 53-47 is that people can ask themselves, will I be in the majority or the minority?" Udall also named Coats, who served in the Senate until 1998, as a possible reform vote; Coats has said that the Senate should not be a 60-vote institution.
Udall and Merkley held their cards close when asked about the strategy that could push this through on January 5, but the Huffington Post's Sam Stein drew out an important point by asking whether Tom Harkin, who has argued for scrapping the supermajority altogether, could be on board with this plan. Short answer: Yes. And both senators pointed out that Harry Reid, while not publicly endorsing a plan like this, has repeatedly said that the filibuster is "broken."
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.