Sen. Merkley Leads Drive Toward Senate Rules Reform

Sen. Jeff Merkley (D-OR)

The collapse of the omnibus would not have occurred if there wasn’t a tremendous backlog on the Senate calendar and a need to get to those items. The Senate’s current rules make it very easy for a determined minority to painlessly create crisis moments and work their will on the body, despite a lack of public support. This is the major hurdle that we could see a resolution to on January 5, when Democrats in the Senate will wage a sweeping effort to change the body’s rules.

This started in the minds of basically a couple freshman Senators, who quickly grew tired of the dysfunction in the upper House. I talked to one of them yesterday, Sen. Jeff Merkley (D-OR), about the effort. “The big challenge was to get the conversation going,” he said. “The old guard Senators who had been here two or three decades, never bothered with the rules. They thought they weren’t changeable. Us newbies, the folks elected in the last two or three cycles, started saying it’s dysfunctional, broken and we need to fix it.”

That, and the complete and total obstruction from the Republicans, has roused the old guard and kick-started the conversation. Over the last several weeks, Merkley, his counterpart Tom Udall (D-NM) and a host of other Senators have engaged in a dialogue about the Senate rules. Today, they will discuss in a caucus meeting a package that can garner majority support. Right now, indications are that at least 40-45 members support Udall’s “Constitutional option,” which he will trigger January 5 of next year by asking that the Senate be granted the right to change their rules in the new Congress. This effort won’t get to the 50 votes needed to advance that (it’s a long story, but they can do this at the beginning of the next Congress by majority vote) until there’s an actual rules package in hand, Merkley told me. “The rule package is a work in progress,” he said. “Democrats start out with a lot of views, a lot of opinions… The first major step was to get the caucus engaged.”

It’s clear that some items are rising to the top. Udall told reporters on a conference call yesterday that banning secret holds was a concept that has nearly 70 members in support today. Merkley identified two others:

1) The motion to proceed. The whole concept of a motion to proceed is to get to a discussion of the bill. Allowing a filibuster of that motion effectively means that more debate is needed to debate whether to begin debate. “By nature, the filibuster on that is out of sync with facilitating debate,” Merkley said. So there’s an embrace of eliminating the ability to filibuster the motion to proceed.

2) Continuous debate. This is colloquially known as “making them filibuster.” If 41 Senators vote to continue debate on a measure, they should actually have to hold that debate. Instead, 41 Senators vote that way and the measure is dropped. That doesn’t make logical sense, and so Senators in the Democratic caucus are interested in that topic.

It seems like the ideas for what to do, which I laid out yesterday, fall into two buckets: 1) save time and 2) make them filibuster. What I cited above fits in with that. “The conversation is an open field right now,” Merkley said. He believes that ultimately, in order for the entire caucus to come together on a package of new rules, the leadership will have to step in. “They’re going to have to say, we debated it, this set of ideas will make a big difference, they’re explainable to the public, they’re fair and we can live with them in the minority.” Until this point, this has driven up from the grassroots, so to speak, from new members. In order to cement a package, the leadership has to get on board.

Some see that as a dim prospect, that Senate inertia will reign supreme. But one indicator shows that may change. Mitch McConnell has suddenly gotten involved in these conversations, holding meetings on the topic. If this follows the Gandhi model, McConnell has gone beyond laughing at the rules reform movement and is now fighting it. “My impression is that he recognized this was a serious conversation, and that he should head it off,” Merkley said sardonically. Surely, McConnell’s first instinct is to derail this effort. But he also sees the need to be engaged so he can “minimize any reform of his abuses,” as Merkley put it. That suggests this is not an academic exercise.

Right now, the biggest date on the Senate calendar is January 5. Pressure will have to be put on the Democrats in Congress to change the rules and make the chamber more functional. As for what members need the most pressure, Merkley chuckled. “I’m sure in general that will become known.”

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