The filibuster's archnemesis

Republicans may capitalize first on Democrats’ plan to weaken the filibuster. That’s OK with Jeff Merkley.

“Yes!” the Oregon progressive says when asked if he’d back a future GOP effort to chip further at the 60-vote threshold that’s become a totem of the Senate. “The test of whether this is fair is whether you will support it when you’re in the minority. Put those shoes on. How would you feel?”

It’s not typical for a Democrat to insist he’d feel quite comfortable if the GOP adopts what his party fell short of accomplishing this month: changing the current rules to allow a top party priority to pass by a simple majority. But the third-term Merkley argues the GOP is unlikely to benefit much from such a change to a talking filibuster, given its prime goals of tax cuts and judicial confirmations. He sees Democrats as the long-term beneficiary even if Republicans make the first move.

Inside a Democratic Party that just a couple years ago regularly wielded the filibuster against the GOP majority, declawing the 60-vote margin is now a surprisingly safe position. And Merkley can rightly claim to be at the forefront of that movement.
The filibuster bothers him so much that he still loses sleep over it. He woke up at 3 a.m. on the day last week that Democrats narrowly failed to install a talking filibuster for elections legislation, going over whether there was some way to sway Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) to weaken the 60-vote threshold. Calling it “Operation: Last Hope,” he privately lobbied Manchin on the floor just before the vote.

In the end, Manchin and Sinema sided against Merkley — and with the filibuster. Yet unlike his longtime liberal ally Bernie Sanders (I-Vt.), who has encouraged potential primary challengers to the two centrists, the soft-spoken former statehouse speaker is still courting the hold-outs, no matter the Sisyphean appearance of the task ahead.

“I have absolutely no interest in that conversation,” Merkley said of trying to find more liberal candidates to run against Manchin and Sinema. “I want to come back and have conversations with our colleagues … to find a path forward.”

It’s rare that a devastating loss on the Senate floor is a zenith. But for Merkley, the 48-52 failure on a drizzly Wednesday night amounts to a high point in his 13-year career. There’s no one else in the Capitol as focused on changing the way the Senate operates than Merkley, nor more directly tied to a series of rules changes the chamber has undergone over the past decade.

Merkley and former Sen. Tom Udall (D-N.M.) led the Obama-era charge to scrap the 60-vote threshold on most nominees, helping the then-president overcome GOP opposition to fill out the courts and his Cabinet. Four years later, in 2017, Merkley launched a filibuster of Supreme Court nominee Neil Gorsuch despite Senate Minority Leader Mitch McConnell’s blockade of Obama’s high court nominee Merrick Garland.

McConnell then promptly changed the rules and eventually confirmed three Supreme Court nominees with simple majorities.

Yet as Merkley sees it, McConnell is unlikely to bend the rules further because his current situation — empowerment to block much of Democrats’ agenda with 41 votes but confirm Supreme Court justices with a simple majority — is essentially “heads I win, tails you lose” for Republicans.

“I would be very surprised to see him actually change a situation that’s working very well for him,” Merkley said of McConnell.

Meanwhile, ever since McConnell eliminated the filibuster for high court nominees, Merkley’s worked toward the moment his own party could go around the opposition leader.

“He must be being fed intravenously. Because he’s just living on peanut sandwiches and working around the clock,” said Oregon Democratic Sen. Ron Wyden. “He laid the foundation on the talking filibuster.”

Merkley mulled running for president in 2020 but saw few avenues to distinguish himself in that muddled field. What he saw instead was a wide-open lane to be the Democrats’ filibuster specialist. In dense, technical presentations to his colleagues, the lanky Oregonian tries to explain what’s wrong with the Senate as he hacks through byzantine procedure.

But unlike some progressives, he doesn’t support getting rid of the filibuster altogether, reasoning it’s worth providing protections for the minority party to extend debate. That has helped Merkley make inroads since March, when he started interviewing every single Democratic caucus member on the topic.

Merkley reported back to Senate Majority Leader Chuck Schumer that he sensed an opportunity on the talking filibuster. Put simply, the reform that Merkley envisions would allow the party in power to eventually pass legislation by a simple majority, only after the minority had exhausted itself on debate.
Merkley says this reform would still require bipartisan negotiations, because floor fights over controversial votes could tie up the Senate floor for weeks or months. His view resonated in the caucus, and the talking filibuster gained support as a less drastic option.

Under Merkley’s vision of the Senate, it will take so long for majority parties to overcome the talking filibuster on contentious legislation that votes on major party-line legislation will be relatively rare. Merkley estimates that GOP senators could use 450 hours of debate time on sweeping reforms like the elections bill: “That’d be longer than the civil rights debate.”

The rest of the time, he sees lonely members blocking a majority vote and then quickly backing down on less major pieces of legislation. These days, a single member of the Senate can demand a 60-vote threshold vote on most bills with just a call to the cloakroom.

He has compelling evidence that use of the current no-effort filibuster spiraled out of control over the past 20 years, but it’s not an easy sell: One Democratic senator described Merkley’s presentation as dry and overly technical. Months ago, Merkley offered to give President Joe Biden his slide presentation “but they didn’t take me up on that,” he said.

He instead educated Biden’s chief of staff; ultimately, the president sided with Merkley and endorsed a talking filibuster.

When the vote came down, 47 of Merkley’s colleagues sided with him as well. That included his Washington roommate and longtime filibuster defender Chris Coons (D-Del.), who observed that by virtue of living under the same roof during session weeks he’s had “dozens” of conversations with Merkley about the filibuster.

“Sen. Merkley is a warm, engaging, thoughtful person. And a great landlord,” Coons said.

Coons was among those who endorsed only the narrowest filibuster change, applying it only to the specific voting and elections bill that came before the Senate this month.

Nonetheless, both parties now have Merkley’s proposal as a template to run with the next time they get stymied on a key legislative goal.

McConnell and most Republicans say they won’t do it, as Merkley predicts, but having 48 Democrats on record for an end-around the 60-vote requirement will change the playing field going forward.

“It sets a precedent,” said Sen. Joni Ernst (R-Iowa), a member of GOP leadership. “I would just remind them that they are the ones that are doing this and that anything goes in the future.”

What Ernst sees as a portend, Merkley views as good news. The idea that the minority party can dictate the direction of the Senate is an “absolute violation of the philosophy of representative government,” he said.

“There are now 48 senators deeply … convinced that the Senate is broken,” he added. “It’s essential that we fix this. And so, I’m convinced we will.”

Marianne LeVine contributed to this report.

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