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The filibuster’s leading Democratic antagonist will continue his charge to weaken the 60-vote threshold — even if Republicans are in power.
To many Democrats, choosing process over party might sound ill-advised or even crazy. Not to Jeff Merkley, the lanky progressive senator from Oregon, whose commitment to changing the filibuster appears remarkably purist.
Many Democrats celebrated after Vice President Kamala Harris embraced eliminating the filibuster, a now oft-abused Senate tool, to pass abortion rights legislation last month. But that chatter’s gotten a lot quieter as Republicans are favored to take back the Senate this year, leaving little upside for Democrats in entertaining a procedural change that might not help their agenda for years.
The party in power is typically far more interested in changing Senate rules, only to lose interest once it’s in the minority. So Merkley is trying to make the wonky topic less situational and more about fixing a Senate that’s barely legislated over the past two years.
“it’s not an authentic or legitimate strategy if you don’t see it working in the minority and the majority. And so I’m happy to talk about it, not knowing if we’ll be the majority or minority,” he told Semafor in a recent interview in his Capitol Hill office.
One thing Merkley’s clear about that sets him apart from some off-the-Hill liberals: He doesn’t want to get rid of the filibuster entirely. He hopes to preserve the ability of the party out of power to gum up the works for weeks at a time, as long as they work for it.
His favored change, the talking filibuster, would require Democrats to fight back by speaking nonstop on the Senate floor if a future Republican majority tries to pass, for example, a national abortion ban.
“We can force them to debate that for six weeks, and then the American people can weigh in,” Merkley said. Even “in the minority,” he added, “on something that is of great significance we have the ability to slow it down, engage the public and carry the fight.”
He’s getting precisely zero support from Senate Republicans, even though his proposals would undoubtedly empower them should they take back control. Minority Leader Mitch McConnell, R-Ky., called the filibuster the “essence of the Senate” in a recent interview; Sen. Thom Tillis, R-N.C., wrote to colleagues this week that “all of us are against blowing up the filibuster.”
Yet Merkley’s approach is generally popular among fellow Democrats, even those in red and purple states. Sen. Jon Tester, D-Mont., supports the talking filibuster, and Sen. Bob Casey, D-Pa., said this week that “the filibuster has been an excuse not to pass needed legislation … it’s time to put an end to excuses.”
Despite that growing interest, getting 50 votes to change Senate procedure is so difficult in the tradition-bound chamber that it’s known as “the nuclear option.” Most senators have no interest in enacting such a consequential change without a guarantee of quick results.
Which means that Merkley is fighting the long game, and he knows it. He’s developed a presentation for colleagues on the abuse of the filibuster and how it’s given the Senate’s minority party veto power over legislation. He talks to Democratic candidates about it, too.
“Candidates are all hearing about it, and those deeply engaged in campaigns are familiar with it. They’re all saying, ‘Look, it’s illegitimate to campaign on policy if you accept an institutional structure in which you can’t get those policies to the floor,’” Merkley said.
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Ever since the late former Senate Democratic leader Harry Reid first chipped away at the filibuster for nominees in 2013, with Republicans going further in 2017 and 2019, both parties have flirted with further changes. McConnell pushed back against then-President Donald Trump’s hopes of outright gutting the 60-vote threshold on legislation. Then Democrats fell two votes short of a filibuster carveout for a voting bill in 2022.
These days, most Republican senators say they’re prepared to protect the filibuster’s effective veto power for the minority, even if Trump asks again — and especially as Democrats try to portray a carveout as a one-time deal.
“Once you do it once, it’s over,” McConnell said.
On that point, at least, Merkley agrees.
“I’ve never supported carving out exceptions to it, because if you carve out an exception on one topic, you’re going to carve out exceptions on the other,” he said. “Which means that the Senate will become the House, a place where the majority just rolls over the top of the minority.”
Becoming the majoritarian House is, indeed, most senators’ worst nightmare for their workplace. Merkley’s talking filibuster would allow the minority party to coordinate opposition and indefinitely delay legislation, provided it could hold the floor. For modest bills, a talking filibuster might dissipate quickly. Eventually, most bills could be passed at a simple majority threshold.
The two former Democrats who opposed Merkley’s last filibuster bid are still warning against his vision. Sen. Kyrsten Sinema, the retiring Arizona Independent, calls changing the filibuster “terrible, shortsighted” and a possible shortcut to a future abortion ban. Retiring Independent Sen. Joe Manchin of West Virginia insists that the filibuster “keeps us working together in a bipartisan way.”
Burgess’s view
I’ve long believed that the legislative filibuster will eventually be weakened. The Senate has now changed its precedent three times since 2013, a new level of flexibility for so-called “age-old rules.”
And it’s plainly true that Democrats are more interested in the kind of sweeping legislation that the 60-vote threshold has strangled for a decade now. Both parties use the filibuster, but Republicans widely believe they benefit more from it. Still, they offered more bipartisanship on critical legislation in 2021 and 2022, wary that too much obstruction could force Democrats’ hand.
It’s unusual that Merkley is comfortable with his reforms even if Democrats are stuck in the minority, because the situational nature of filibuster reform is not helpful to his cause. If either party only talks about changing the Senate rules while in charge, that only fuels the perception that changing the filibuster is all about power rather than making the Senate functional.
But change now seems unlikely during the next Congress — unless Democrats can somehow claim full control of Washington next month.