This is a story about the filibuster. You should read it anyway
Analysis by Zachary B. Wolf, CNN
(CNN) — When things actually happen on Capitol Hill, it’s frequently because senators find ways around the filibuster, the custom whereby a supermajority of 60 votes is required to pass legislation.
The relatively easy confirmation of President Donald Trump’s Cabinet?
That was possible because in 2013, Democrats invoked the so-called “nuclear option,” changing Senate rules confirm nominees with a simple majority (notably because Republicans were holding up federal nominees and appointments). Republicans later expanded that policy to include Supreme Court nominees.
Republicans’ plan to pass immigration and tax cut legislation?
They’re going to cram these massive policy proposals into a “reconciliation” bill, which is exempt from the filibuster, but was never meant to be a vehicle for such massive policy change.
And yet when the new Senate majority leader, Sen. John Thune of South Dakota, outlined his priorities, he said defending the filibuster is essential to “preserving the Founders’ vision of the Senate.”
Thune is a Republican, but Democrats are also guilty of having it both ways on the filibuster.
They came within two votes of filibuster reform during Joe Biden’s presidency, when they were trying to pass an election reform bill, but they’ll be happy to block Trump proposals now that they’re in the minority. Trump, by the way, complained about the filibuster during his first term.
There are still Democrats talking about the need for filibuster reform.
I went to Sen. Jeff Merkley, an Oregon Democrat who led the effort to reform the filibuster during Biden’s term and is also the co-author of the 2024 book, “Filibustered! How to Fix the Broken Senate and Save America.” I wanted to know if he would work with Republicans on filibuster reform if Trump demanded it. Our conversation, conducted by phone and edited for clarity and length, is below.
Why should people want to change the filibuster?
WOLF: I think people’s eyes kind of glaze over when they hear the word “filibuster.” How do you briefly explain it to them in order to make people understand how important reform is.
MERKLEY: The filibuster in its current form is simply a vote that’s taken and if 41 senators vote not to end debate, you have no way to vote on a bill, and if it’s done earlier in the process, you have no way to even get to the bill to the floor of the Senate for debate.
Merkley supports the ‘talking filibuster’
WOLF: Changing Senate rules has been referred to as the “nuclear option,” because you take a simple majority of senators in order to remove the supermajority requirement. We already live in a post-nuclear option world. Trump’s nominees are having a relatively easy confirmation process, even though some of them are arguably unqualified, and that’s because in 2013, Democrats invoked the nuclear option for most nominees. Do you think that Democrats today regret that move?
MERKLEY: First, I’ve never advocated for getting rid of the filibuster on policy.
I’ve advocated for the talking filibuster, and that’s a whole different approach.
The problem with the current version of the filibuster on policy is that it doesn’t require any debate. So in other words, paralysis can be done by the minority party without any discussion on the floor, any chance for the American people to weigh in, and nothing that compels compromise.
But if the minority party that’s holding up a bill has to carry continuous debate on the floor, it’s not just a simple vote. They have to work at it. They have to keep lining up people through the night, through the weekend, maybe through the week off. And not only is that extremely difficult, but it’s extremely public, and the public can weigh in. Are you heroes or are you bums? It incentivizes a compromise, because the majority doesn’t want the floor tied up for weeks on end on a single bill. They’ve got a lot of other things to do, including nominations, and the minority now has to expend enormous energy and be publicly exposed for their position.
The existing no effort version – which I often refer to as a 41-vote veto – encourages paralysis, because the minority party has taken the approach in recent years of saying the best way to get back in the majority is to paralyze the majority from being effective. If they’re effective, people might retain them in power.
That started over on the house side in the Gingrich revolution, he adopted that philosophy of doing all you can to paralyze the Democratic majority that was in power and had been in power a long time.
When that philosophy came to the Senate, the Minority Leader, (Sen. Mitch) McConnell, had two instruments that Gingrich could never dream of: Burning time on nominations, and the 41 vote veto, or the no effort filibuster.
What happens in spite of the filibuster?
WOLF: Thune has said Republicans are going to protect the filibuster. But to the extent that Republicans are going to get major successes, I think we can assume this is true during the Trump era, it will be through reconciliation. So they’re protecting it, but also getting around it. How much of what’s accomplished in Congress these days is done in spite of the filibuster?
MERKLEY: An interesting point to remember is that the reason that you can do tax loopholes for the rich in reconciliation is because the Republicans conducted a nuclear option in 1996.
The 1974 Budget Control Act had 100 senators vote for it, to create a filibuster free pathway for only one reason, and that one reason was reducing the deficit.
When Republicans decided that they could never do massive tax cuts for the rich and powerful through the normal process, they proceeded to pull off a nuclear option to repurpose the filibuster free pathway for the rich and powerful, and that’s how we ended up in this situation where they are yet again, and they’ve done it many times before, putting massive tax cuts for the billionaires through reconciliation.
WOLF: Just to note, Democrats have also gotten major accomplishments getting around the filibuster – the Affordable Care Act, the Inflation Reduction Act, these things were all done with reconciliation, right?
Merkley: Only one of the Democratic bills through reconciliation have increased the deficit. Increased the deficit… But each and every one of the Republican tax bills have increased the deficit.
Note: Here’s a Congressional Research Service Report on every budget reconciliation bill. Trump’s tax cuts and Biden’s 2021 American Rescue Plan, meant to pull the economy through the Covid-19 pandemic, increased federal deficits. These are also two of the last three reconciliation bills.
What does the filibuster block?
WOLF: I think there’s a widely held and probably accurate perception that the majority party can’t do things it wants to do and which it was elected to do. How much of that is attributable to the minority block being able to block most, but not all, legislation.
MERKLEY: The minority, with 41 votes, can block policy legislation. You made the point that creates a goal for the majority to use reconciliation more broadly. There is a test called the Byrd bath to keep policy out of reconciliation bill. There is a balancing act that goes on, in which if a provision is for the primary purpose of changing policy, it cannot go into reconciliation bill.
For example, (increasing) the minimum wage, which would have increased tax revenue so had a budgetary impact, was banned from a reconciliation bill.
On the other hand, drilling in the Arctic preserve was estimated to produce so much money that, even though it was a massive policy change to take a reserve and turn it into an oil drilling field, it was allowed into the reconciliation bill.
But in general, the rule is policy is not supposed to be in that in in reconciliation. So instead, policy is approached primarily in two ways, in reconciliation. One is changes in tax law that change the revenues produced, and the second is change is in spending levels for existing programs.
Reconciliation is the current model for legislation
WOLF: But, without getting too complicated, the current state of affairs is that a president whose party controls the Senate, they have really one shot to get a big legislative win, and that’s by getting around the filibuster through reconciliation. That’s the pattern we’re in, right?
MERKLEY: Yes, with an amendment. And the amendment is that if there hasn’t been a reconciliation bill in the current fiscal year, they can get two shots. For example, Republicans in the Senate, Lindsey Graham, has been arguing to do two reconciliation bills, an FY 25 bill, even though we’re in fiscal year 25 right now, and then an FY 26 bill for the year that starts in October 1.
Is Trump 2.0 an opportunity for filibuster reform?
WOLF: Trump has complained about the filibuster before. I think we can assume he’s going to complain about it in his second term. Would you personally trade allowing a policy that you disagreed with, say a tough immigration law that included things that you thought were horrible, in order to achieve filibuster reform?
MERKLEY: Of course, my argument is for the talking filibuster, which means that as long as the Democrats in the minority maintain a continuous presence on the floor speaking, they can block a bill. And I absolutely support that policy, whether I’m in the minority or in the majority.
The paralysis of the Senate on policy contributes to an enormous sense of cynicism and ineffectiveness. Why should people campaign for a particular party that’s claiming a whole series of policy goals, knowing that they can never get those done because of the 41 vote veto, and that the minority has an incentive to use that veto just to paralyze the majority from being successful?
You haven’t asked this question, but it’s an important one. Why don’t Republicans want to reform the filibuster in the fashion I’m talking about? Well, here’s the answer. I’m glad you asked.
They currently can paralyze the majority when they’re in the minority with no effort. So they don’t want to have it be more difficult. Second of all, their position is out of sync with the American public, so they don’t want to have a public extended debate. Third of all, because they did the nuclear option in 1996, they can achieve the bulk of their agenda through tax policy, which they now have a filibuster free pathway for.
So McConnell understood what Trump didn’t, which is, for the Republicans, this is a heads, they win, tails Democrats, loops. That is, in the minority, the Republicans can buck the Democrats policies, and in the majority, the Republicans can do their agenda through tax legislation. So why would they change a situation that is so advantageous to them?
WOLF: I don’t think that Donald Trump necessarily looks at things from that strategic viewpoint. If he says that they need to change the filibuster, there’s a good chance that you’ll have some of your Republican Senate colleagues who say, okay, let’s change the filibuster. Do you think that this term presents an opportunity for Democrats to to reform things?
MERKLEY: One of the points I have made is that if we don’t reform the filibuster into the talking filibuster, which encourages compromise and creates a public process, the day will come when one side or the other will just eliminate it, and that that will turn the Senate into the House, where the majority just runs over the top of the minority and eliminates that need for extended debate.
That is not good for our democracy.
The Senate was founded on the idea that things would be thoroughly debated, which is how the Senate was once called world’s greatest deliberative body, but it has since become probably one of the most paralyzed and ineffective legislative bodies in existence in the world. It has gone from being the cooling saucer – the apocryphal phrase attributed to Washington – to being the deep freeze. This is really hurting our democracy. If you don’t get a reform like I’m suggesting, at some point, one party or the other will wipe out the filibuster, and that will not be good for the Senate or for America.
Related: The epic fight in 1975 that changed the Senate forever
WOLF: You could take a separate long view of Senate history and look at it as a slow nibbling away at the filibuster. There have been these reform efforts through history. In World War One, they created the current cloture system, which was actually supposed to make things easier to get through the Senate. In the 70s, they lowered the threshold from 67 votes to the 60 today. In the 2010s Democrats invoked the nuclear option for nominations. Do you think it’s appropriate to assume that in the future, there will be a filibuster free Senate?
MERKLEY: I think your your version is not accurate. Historically, we’ve gone through multiple phases. I encourage you to take a quick glance at my book Filibustered!, which lays out the history in the early phases of the Senate. There was no such thing as a filibuster. There was an understanding of what I refer to as the Senate code. That is, we have a responsibility to debate things thoroughly. People should be able to put up amendments. We debate them. You make cogent points, you vote on them. This was the philosophy that came out the Confederation Congress, because they’d had a super majority requirement in that Congress, and it had paralyzed them.
(From here, Merkley described several eras in which filibusters, driven by North-South regional disagreements, paralyzed the Senate, including in the Civil Rights era, which is why Barack Obama referred to the practice as a relic of Jim Crow.)
Historically, we’ve had periods when the code dominated and when the filibuster grew. So what’s going to be the next chapter in this? I hope the next chapter is a Senate that goes to the talking filibuster. It’s the right answer. We were two votes short of going to the talking filibuster in January of 21. (Now-former West Virginia Sen. Joe) Manchin opposed it. (Now-former Arizona Sen. Kyrsten) Sinema opposed it. They were defending the filibuster, but they were not defending the filibuster. They were defending the modern, no effort, no debate, 41 vote veto.
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