Mr. Merkley goes to Washington: Filibuster-buster foiled, but unbowed

February 6, 2013

If you had to invent a word that meant “obnoxious and purposeful dysfunction of legislative process,” you could hardly think of something better or more onomatopoeic than “filibuster.”

fix the filibuster 2

Of all the flaws in our democracy, the filibuster and its abuse in the U.S. Senate is among the most flagrant, and the silliest.  So the Senate’s recent failure to enact meaningful filibuster reform – despite the inspired leadership of Oregon Senator Jeff Merkley –  is a big disappointment.

I come to the filibuster reform campaign from the perspective of a climate policy advocate (inspired by Alan Durning at Sightline Institute).  Over the last couple of years, much has been written about the failure of the U.S. Senate to pass a national climate bill[i].   This growing literature of climate policy failure analysis has many important lessons to offer, particularly about building movements and political power.

But, without dismissing those lessons at all, there’s a case to be made that even a moderately functional United States Senate would have passed the climate bill under the prevailing political circumstances.  After health care, it seems exceedingly unlikely that anything very complicated or difficult or big could have been produced by the Senate in President Obama’s first term.  The institution was kaput, and it hasn’t recovered much since.

Fixing the filibuster would not cure all that ails Congress.  But it’s a great place to begin the process of restoring our democracy to some semblance of functionality and efficacy.   It’s almost a test of self-respect, of whether we care about the American creed and instruments of self-government enough to slap aside this ridiculous impediment.

But when Senator Merkley and other leaders stepped up with serious reform proposals (like the “talking filibuster”) in January, the Senate balked.   “It’s some change in a Senate committed to no change;” that was about as much enthusiasm as Senator Elizabeth Warren, a reform advocate, could muster for the tweaks agreed to by Senators Reid and McConnell, the majority and minority leaders of the Senate.

The reforms offer a few new procedural efficiencies that may reduce the opportunities for delaying consideration of a bill and speed up the confirmation process for nominees.  But the minority party will still have free reign to filibuster procedural motions and substantive bills.  As Ezra Klein put it in the Washington Post, “The filibuster is safe.  Even filibusters against the motion to proceed [without which bills can’t even be considered] are safe.  And filibuster reformers have lost once again.”

What ultimately hangs up filibuster reform is fear, and the willingness of the minority to obstruct government.  The majority party, which can use the “constitutional option” to amend Senate rules with 51 votes, knows that someday it won’t be the majority party.  And when that day comes, they’ll want to have that filibuster wrench to throw into the gears.

This is clearly destructive to the purposes of good legislative process.  And it’s so notoriously obstructionist that it erodes public trust and respect for government.  “But at least” – one might argue – “it’s symmetrical:  the destruction cuts both ways, and arguably constrains the abuse of majority power.”

I don’t buy it.  The damage associated with legislative obstructionism is not symmetrical.   If you believe that government actually has some big, important jobs to do – like, say, tackling climate disruption – then you need a functional, effective legislative process.  If you believe that “government is the problem” and you just want it to go away, then leaving it wrapped around the axle of its own procedural paralysis isn’t the worst outcome.   “Filibuster” is almost like the name of the proposition that “government is lame.”   That is hardly a neutral message.

Senator Merkley has vowed to keep fighting for a functional U.S. Senate.  His statement after the tepid reforms passed was measured and collegial – that’s how Senators do – but his passion for serious reform shines through:

“The Senate spoke clearly today: the paralysis of the Senate is unacceptable. Senators of both parties have recognized the need for change, and supported several steps to make the Senate more functional…

“I would like to have gone further. In particular, I believe that if 41 Senators vote for more debate, then Senators should have the courage of their convictions to stand on the floor and make their case in front of the American people. Then the American people could decide if obstructing Senators are heroes or bums.

“I’m disappointed that we didn’t take a bolder step to fix the Senate, but what is most important today is the deep determination of Senators to return the Senate to a more functional institution. If the modest steps taken today do not end the paralysis the Senate currently suffers, many Senators are determined to revisit this debate and explore stronger remedies.

“We have a responsibility to address the big issues facing our country. I’ll keep working with my colleagues to achieve that goal.”

Note to climate advocates (and advocates of all major public policy reforms for that matter) Let’s learn our lessons and get stronger from the failure of the climate bill.  But let’s also focus on restoring some semblance of a functioning democracy.  It’s hard to imagine how we do climate policy, or much of anything, until we do that.


[i] There is now a robust literature of climate policy failure analysis.  Eric Pooley’s The Climate War is a classic of the genre.  And David Roberts offers typically incisive coverage of the latest flurry of regret and recrimination, touched off by Theda Skocpol’s entry, including responses from some of our most thoughtful climate warriors. Many of these lessons are useful, and plenty of us did plenty of things wrong on the way to not passing a national climate policy, no doubt.  And yet it should also be noted that plenty of people did plenty of things “right” – that is, the way you’re supposed to do them in the system we’ve got.  On paper, it seemed that many of the critical ingredients were there for “success:”

Both Houses of Congress and the presidency were controlled by the party that is nominally sympathetic to climate action.  The House had passed the bill, working through many of the tricky issues – like protecting manufacturing competitiveness – that could have precluded majority support.  A strong business voice for climate policy was brought to bear and actively working for passage, along with a diverse range of other constituencies.  Deals had been cut and special interests appeased (to the point where many of us wondered whether the bill was still worth having.)  The President had received the world’s first prospective Nobel Peace Prize, just before the Copenhagen climate summit — so fervent was the world’s hope that the U.S. would step up to its global responsibility for climate solutions, which would start, of course, with the adoption of a national climate policy.  And the disastrous oil spill in the Gulf provided a high-profile reminder of the devastating costs of fossil fuel dependence as an explosive and instructive visual backdrop for the Senate deliberations, if one can call them that.  But the Senate as an institution had veered off into a ditch after healthcare.


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