Sen. Jeff Merkley of Oregon has circulated a memo on his “talking filibuster” reform. It’s nice to see the details spelled out. The key element pertains to situations where there are at least 51 votes for cloture, but not sixty. Next year, there will be 55 members of the Democratic caucus and 45 members of the Republican caucus, so any party-line vote would fall into the affected category.

Under the current rules, the filibuster works by being tied to the unanimous consent requirement of the Senate. As such, it is much more powerful than a rule tied strictly to ending debate. Whenever the Majority Leader makes a motion to move to a new issue, he must receive the unanimous consent of all 100 senators. If anyone objects, he needs to file for cloture, wait two days, get 60 votes to approve his move, and then allow 30 hours of post-cloture debate.

Merkley’s talking filibuster doesn’t change any of those basics. But let’s say that Harry Reid wants to hold a vote on extending the middle class tax cuts for 98% of Americans and makes a motion to move to that bill. If anyone objects, he will still file for cloture. After two days, when the cloture motion has “ripened” there would be a vote. If it were a party-line vote, he’d get 55 votes. In today’s world, he would be defeated. Under the proposed reforms, however, having received a majority of the votes a new process of “extended debate” would be triggered. During this extended debate, at least one minority senator would have to be on the floor at all times talking against the bill. If they failed to keep talking, a new cloture vote could be scheduled requiring only a majority to pass. Otherwise, the 60 vote threshold would be maintained.

If you want additional details, follow the link.

How would this look? Let’s imagine a Supreme Court nomination opposed by the Republicans. As of today, it would take 41 Republicans to prevent even having a debate on that nominee. Under the proposed reforms, 51 Democrats could force a debate to the floor. Once on the floor, the Republicans would have to speak against the nominee incessantly to block a simple majority confirmation vote. Would the Republicans be able to block a nominee under these circumstances? The answer is that they could if they were determined enough.

But they wouldn’t be willing to do it unless there were exceptional circumstances.

Thinking back to the nomination of Robert Bork, the Democrats ultimately defeated him 58-42 without needing to filibuster. That was, in part, because six Republicans opposed him while only two Democrats supported him. Yet, if the composition of the Senate had been more favorable to the Republicans (as it was when they confirmed Samuel Alito, for example), the Democrats could have stopped Bork by using the extended debate period to essentially win the argument in the court of public opinion.

I think that is how the filibuster ought to work. The majority gets to govern, but if they try anything crazy, the minority can hold everything up and make a determined plea to the people to reject what has been proposed.

I think these reforms make sense. I support them.

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