Why I Think Merkely/Udall Has It Wrong

On Senate reform, suppose you're in the group -- which according to what they say publicly includes most leading Democratic Senators -- who wants to find a middle ground between the current dysfunctional Senate on the one hand and creating a House-like strict majority party rule on the other hand. Yes, I know, there are plenty of people who just want to eliminate the filibuster entirely, but let's put that argument aside; even if it's correct, which I don't believe it is, it's not going to happen anyway right now. So if you accept that a middle ground solution is what they should be looking for: what's the best way to achieve that goal?

I think Merkely/Udall goes about Senate reform the wrong way. I'm not sure it's their fault; it may be the case, as Sarah Binder suggests, that (very) incremental reform is the only way to go, and so whatever we're going to get isn't really going to make any difference. But as far as I can tell they sincerely believe that their solution is not incremental, and will really fix much of what's wrong. It's very late in the day, but I'll run through one more time why I think they're on the wrong path.

First: it's important to identify the problem, which is the outsized ability of a dedicated partisan minority to get their way in the current Senate. They can do so in two ways: when they don't have 41 votes they can drag things out so much, even on entirely unrelated matters, that they reduce the overall capacity of the Senate. And when they do have at least 41 (but no more than 49) votes, they can and will block everything. Note that the same minority party -- that is, the Republicans -- may have 41 votes for some things but not others, so both of these matter.

On the sub-41 situation, I have no major difficulties with what Merkley/Udall propose (or with the Levin response, for that matter).

But there needs to be something on the 41-49 situation.

I've seen three general approaches. Merkley/Udall, of course, try to do it through a "live" filibuster. The idea is that by increasing the cost of filibusters, it will reduce their frequency. As I've said many times, I think it's not only futile, but perverse. The problem is that if you want a middle course (again, what we're discussing here), then what you need is a set of rules which somehow lead to some "live" filibusters working and others not working, or not being worth attempting. I just don't see that as a likely outcome -- mostly because if any talking filibuster is possible, then the minority would have a powerful incentive to prove they can do it on any measure, and at the end of the day floor time is more valuable to the majority than the minority. Meanwhile, I see a lot of people defending talking filibusters for what I see as terrible reasons: that it would expose the minority to public opinion, that it would yield better reporting on who was responsible for obstruction, that it would return the Senate to what it once was. I don't think any of that is correct.

The second general approach I think is to design some sort of (other, non-"talking") complex rule to try to prevent constant filibusters, but to preserve it to some extent. In my view, it may be possible to achieve this one; it's easier than if you begin with the irrelevant condition that a solution must involve Jimmy Stewart. However, it's still very difficult. For example, Tom Harkin has a proposal that would involve a sliding scale for each filibuster, so that cloture would require 60 at first but gradually move towards a simple majority. The problem is that I still haven't seen a proposal which would almost certainly wind up either doing nothing or do away with the filibuster altogether. It's pretty hard to draft one, at least one that could withstand parliamentary maneuvers to undermine it.

All of which is why I think the third approach is the best one: instead of trying to make filibusters harder for the minority, try to make passing (some) bills easier for the majority. That's the idea behind Superbill!, or a leadership bill, or enhanced reconciliation -- leave the filibuster in place for most bills, but exempt some of them. It's also the idea behind making appropriations bills impossible to filibuster. I do believe, however, that the tradeoff for majority ability to move these bills more easily should be much better protection for minority ability to offer amendments. Plenty of amendments, not just one or two from the leadership, although with protections against filibuster-by-amendment. But basically: you want majorities, you get majorities, and not just party-defined majorities.

Granted, Superbill! doesn't do anything for nominations reform. As I've said, I'd support simple majority cloture on executive branch nominations and perhaps district court selections. On SCOTUS and Circuit choices, I think it's a lot harder to find a good solution...I sort of hope that compromise can work in cases with a large minority, but I don't know that it can.

Look: if the talking filibuster passes, I hope that it does what Merkley and Udall think it will do. I just don't see why it would. At any rate, my best guess at this point is that we get minor changes for sub-41 minorities but nothing for 41-49. Which means reformers will probably have two years to go back and try to get it right -- and to build support for it.