Merkley details his filibuster proposal

Kari Chisholm

As you know, our own Senator Jeff Merkley has been leading the charge to fix the filibuster. Over the past year, he's proposed a number of variations on the theme, seeking support from his colleagues and the public.

Now, having organized a public petition drive with support from five other Senators (and Senator-elect Elizabeth Warren) that has - so far - earned signatures from 256,949 members of the public, and the clock ticking inexorably toward the start of the new Congress, Merkley's detailed his filibuster reform proposal for his fellow Senators.

HuffPo's Ryan Grim obtained a copy of Merkley's memo to his colleagues. On the jump, I'll reprint the Merkley memo in its entirety (nerd alert: it's 3000 words long). Here's the crux of it:

The Talking Filibuster Proposal: The talking filibuster proposes to bring the filibuster back into the Senate chamber before the American people. If a determined minority of at least 41 senators (assuming all 100 senators are voting) voted for additional debate, then additional debate would occur.

It would work like this. If the Senate held a cloture vote to end debate, and a majority of senators voted to end debate, but not 60, the Senate would enter a period of "extended debate." In short, once the Senate has voted for additional debate, senators who feel that additional debate is necessary would need to make sure that at least one senator is on the floor presenting his or her arguments.

If, at any time during the period of extended debate, no senator were present to speak to the bill, then the presiding officer of the Senate would rule that the period of extended debate is over. The Majority Leader would then schedule a simple majority cloture vote on the bill.

If the simple majority cloture vote were to pass -- and in most cases it would since the previous cloture vote already received a simple majority -- the normal period of 30 hours of post-cloture debate would proceed. This post-cloture period would be exactly the same as it is now (unless changed by a separate change in a rule).

Here's the full memo from Senator Merkley to his colleagues, in all its detailed, nerdy, parliamentary glory (bolds and italics are mine, for readability):

To: Colleagues From: Jeff Merkley Date: December 12, 2012

The Talking Filibuster

Many of you have asked me for further details on the talking filibuster and how it would work. This memo discusses the mechanics and the benefits. Please feel free to follow up with me with any other questions.

Background: The filibuster is thought of by the public as a bold and determined stand by the few against the many to stop a bill from being rushed through, normally exercised by senators speaking at length to a bill.

As we all witness every day, this is not the way a filibuster now works. Indeed, it is simply a declared objection to a unanimous consent (UC) request to hold a vote. No speech on the floor is required under the rules. The modern filibusterer has to spend no time or energy on the effort.

Before 1970, the filibuster was used primarily on the final passage of bills. Since then, its use has rapidly expanded to include motions to proceed, amendments, and motions to establish a conference committee.

One simple way to track its expanded use is to observe that during Lyndon Johnson's six years as Majority Leader, he only had to utilize one (yes 1!) cloture motion. Meanwhile, during Majority Leader Reid's six years in his office, he has had to utilize almost 400 cloture motions to try to end debate and get to a vote on substance.

When the filibuster is used routinely, it becomes an instrument of mass legislative destruction. Since each filibuster can take a week of the Senate's time (two days for the motion to "ripen" and 30 hours of post-cloture debate), multiple filibusters eat up the Senate's calendar, making it impossible for the Senate to address important business.

This paralysis is unacceptable. The abuse of the filibuster is deeply damaging the Senate's ability to fulfill its responsibilities. Nominations for the executive and judicial branches are backlogged. Few of the traditional appropriation bills are debated and decided. Numerous important policy bills developed in committees to address major issues facing America never make it to the Senate floor for debate.

In addition, this routine use of the filibuster has changed the culture of the Senate. Previously, it was understood that the Senate, while a "cooling saucer" in President Washington's probably apocryphal term, was in the end a body that made decisions by simple majority. The "silent" filibuster, however, has changed the Senate into a de facto supermajority body.

The exercise of this powerful weapon, the silent filibuster, is invisible to the American people. Citizens witness the paralysis of the Senate by seeing inaction on the Senate floor. When they expect to see debate and votes, they instead witness quorum calls and unrelated speeches.

Thus, rather than seeing obstruction and placing responsibility with the minority, the public sees inaction and blames the majority. Indeed, this is one reason the silent filibuster is so tempting to the minority. Not only can this weapon be utilized with little investment of time and energy, but the leadership of the minority can obstruct the Senate while escaping public accountability.

In short, the people have elected a Senate to address issues that majority members have raised in campaigns, but the silent filibuster is preventing the majority from acting on its agenda to address the big issues America faces. It is our challenge to restore the Senate as a legislative body that, while giving a forum for minority opinions and ideas, can effectively debate and decide issues.

The Talking Filibuster Proposal: The talking filibuster proposes to bring the filibuster back into the Senate chamber before the American people. If a determined minority of at least 41 senators (assuming all 100 senators are voting) voted for additional debate, then additional debate would occur.

It would work like this. If the Senate held a cloture vote to end debate, and a majority of senators voted to end debate, but not 60, the Senate would enter a period of "extended debate." In short, once the Senate has voted for additional debate, senators who feel that additional debate is necessary would need to make sure that at least one senator is on the floor presenting his or her arguments.

If, at any time during the period of extended debate, no senator were present to speak to the bill, then the presiding officer of the Senate would rule that the period of extended debate is over. The Majority Leader would then schedule a simple majority cloture vote on the bill.

If the simple majority cloture vote were to pass -- and in most cases it would since the previous cloture vote already received a simple majority -- the normal period of 30 hours of post-cloture debate would proceed. This post-cloture period would be exactly the same as it is now (unless changed by a separate change in a rule).

Advantages of the Talking Filibuster: There are three basic advantages to the talking filibuster. 1) it would require time and energy to filibuster. 2) it would put the filibuster squarely in front of the public. 3) it would allow the public to weigh in with their senators.

Here is a little more discussion on each point —

1) Time and energy to filibuster:

By requiring time and energy to filibuster, the talking filibuster could strip away frivolous filibusters.

Would a senator organize and sustain a talking filibuster on a minor bill or on a judge's confirmation that is going to be passed by 95 votes? In many cases, probably not, allowing the Senate to complete the debate and decide the issue.

This would place the filibuster more in keeping with its historic role of being used on issues of substantial personal values or major public consequences.

2) The filibuster is made public:

The current silent filibuster is invisible, leaving the public mystified as to the source of delay and paralysis.

The talking filibuster would change that by putting the source of obstruction squarely in front of the public. Citizens would be able to judge whether the filibustering senators were heroes or bums. Are they defending a core principle or key policy, or simply working to paralyze the operations of the Senate to prevent it from debating and deciding issues?

3) The public can weigh in:

Because the talking filibuster would put the filibuster before the public, the public could weigh in with their own senators on whether to support or oppose the filibuster.

Some citizens might agree with the policy position represented by the filibuster and urge their senators to support it.

Others might weigh in to oppose the filibuster, either because they see the strategy as one of deliberate obstruction on a minor issue or because they disagree with the policy position represented by the filibustering senators.

In either case, it would be extremely valuable for them to weigh in. If the public were to perceive a pattern of deliberate obstruction preventing the Senate from debating or deciding bills related to significant national challenges, the public could take that into account when voting in the next election.

Furthermore, the public would have an amplified opportunity to influence their senators' positions in order to advance or oppose specific legislation. For example, if the minority had had to hold a talking filibuster on the DISCLOSE Act, the public would have seen an extended display by filibustering senators defending secrecy in political donations. There is a substantial chance that the public reaction would have helped secure the 60th vote that was needed for cloture.

This may well have helped to adopt other legislation such as Pay Equity, the Administration's Jobs bill, and legislation closing tax loopholes for oil companies.

The Talking Filibuster Would Be Fair for the Majority and the Minority:

The majority would benefit from the talking filibuster by forcing the filibuster into the public arena and forcing the filibustering senators to make their case. In some cases this could eliminate frivolous filibusters. It would also enable the majority to take to the floor to make their own arguments on an issue, potentially mobilizing the public to help move an agenda or at least aim their frustration over obstruction at the right target.

Some have asked whether the talking filibuster would make it impossible for the Senate to decide to end consideration of a bill, in essence wondering if a talking filibuster that did not end would keep the Senate "stuck" on the bill. This would not be the case -- the Majority Leader would have the same tools as under current practice to propose that the Senate move on to other business.

The talking filibuster would also be fair to the minority. The minority would have the full ability to maintain the supermajority requirement for 60 senators to vote to close debate. Moreover, they would have the opportunity to persuade the public that their opposition to the bill or nominee really is merited.

In both situations, the process of public debate and deliberation is greatly enhanced.

Common Questions Regarding the Talking Filibuster:

Can't the majority under current rules already force senators to debate?

In short, "no." It is true that under current precedent, if no senator is seeking to speak, the presiding officer should "put the question," meaning that at that point, the Senate should vote on whatever matter is pending. But in real life, a senator can block this by noting the absence of a quorum. Thus, the majority can only force a filibustering senator to speak by maintaining a quorum on the floor. As a result, 51 pro-cloture members are required to keep one filibustering member talking. This imbalance cannot be sustained for more than short periods and thus such an effort is rarely attempted.

But can't multiple quorum calls be ruled dilatory?

In practice the answer is "no." A senator can sustain a long sequence of quorum calls under current rules by making intervening motions.

So couldn't a senator use the quorum call to stop the talking filibuster?

No. Under the proposed rules of extended debate, a quorum call that would stop the talking filibuster would not be in order.

Under the talking filibuster, how many pro-cloture senators would need to be on the floor?

One member of the majority would be required to preside. In addition, one pro-cloture senator would need to be on the floor in order to object to any unanimous consent motion made by a filibustering senator. This ratio of two-to-one to force debate would be much more sustainable than the ratio of 51-1 required under the current rules.

What about other motions that would interrupt debate?

Motions to adjourn, recess, or change the pending business of the Senate would not be in order, except by the Majority Leader (for purposes of managing the Senate).

Could the Senate, during the talking filibuster, address amendments?

Yes. Amendments could be made pending by regular order during the talking filibuster (assuming, just as under current practice, there are amendment slots available). Once made pending, debate could only be closed by unanimous consent or through the normal process of filing a cloture motion on the amendment, letting it ripen, and obtaining a 60-vote cloture vote on the amendment. However, if the regular order progressed to the moment where the cloture vote on the amendment, or a vote directly on the amendment, were in order, under the proposed rules of extended debate the Majority Leader could schedule the vote so that a vote wouldn't occur randomly in the middle of the night.

Could the Majority Leader interrupt a talking filibuster to address pressing matters?

Just as under current practice, the Majority Leader could move to proceed to a different matter. If it's a privileged matter (such as a conference report, a message from the House, or moving to executive session to consider a nominee), the Senate could proceed to that item and, when that item is disposed of, the talking filibuster would continue.

On the other hand, if the item the Senate proceeded to was non-privileged, the talking filibuster would end and consideration of the bill or nomination would be effectively ended (as under current practice).

Could senators, during the talking filibuster, make other motions to facilitate debate?

Yes. During a period of extended debate, senators could make motions related to debate, such as tabling or referring a question to committee, under the same process as current practice. The timing of the votes on such motions, however, would be controlled by the Majority Leader. Under the current plan, the Majority Leader would be required to schedule such votes within four calendar days.

Would senators need to debate continuously to block amendments they oppose?

No. The talking filibuster would only be triggered by a failed cloture vote on the bill as a whole.

However, if during the talking filibuster an amendment was made pending and was debated, that debate would still be under the continuous debate requirements of the talking filibuster on the underlying bill.

Could the filibustering senators trade off speaking?

Yes. During the period of extended debate there would be no limit on how many times a single senator can speak. For example, two senators could trade off covering the floor for two hours at a time, or a dozen senators could each take two hours per day. Regardless of the schedule, the talking filibuster would take time and energy and would be in full public view.

Could filibustering senators be forced to keep holding the floor when everyone else has left?

As currently planned, a talking filibuster could extend through a weekend and beyond if the senators returned to DC the following Monday. Filibustering senators could not be forced, however, to stay longer, such as over a week-long in-state work period or an August recess. If the majority tried to extend the talking filibuster for more than a weekend without reconvening, the filibustering senators could demand the presence of a quorum and effectively put the talking filibuster into a recess.

Would the talking filibuster require senators to talk while a cloture motion is ripening?

No. The talking filibuster would come into play only after a cloture vote is held and senators vote to continue debate. Senator [Frank] Lautenberg has a separate proposal that would require senators to talk both when the motion is ripening and during the 30 hours of debate after a successful cloture vote. Failure to talk would shorten these time periods. His proposal would therefore serve a different but valuable mission.

If a cloture vote were to fall short of 51 votes, would the talking filibuster kick in?

No. If fewer than 51 senators voted to end debate, debate would continue as it did before the cloture vote (as under current practice).

Once a talking filibuster started, could the Senate hold additional cloture votes?

Yes. This could either be done through reconsideration of the original cloture vote or through the filing of a new cloture motion (as under current practice). As long as the talking filibuster continued, however, cloture votes would still require 60 votes to succeed.

How would a talking filibuster end?

The talking filibuster could end in one of several ways: 1) A cloture vote gains 60 votes and ends debate. 2) Senators quit talking and a simple majority cloture vote gets 51 votes (assuming all senators vote). 3) Senators can, by unanimous consent, agree to return to regular debate or to suspend the talking filibuster for a specific length of time. 4) Senators can, by unanimous consent, negotiate a deal to terminate the talking filibuster and set the terms for completing debate on the bill. 5) The Majority Leader can utilize the same system we have now to end consideration of a bill or nomination. Namely, the leader can end consideration of the bill or nomination by making a motion to move to other business.

Under the talking filibuster, could senators opposing a bill or nominee keep the 60-vote requirement in place to end debate?

Absolutely. All the opponents would have to do is keep one filibustering senator on the floor. It is important to recognize that the talking filibuster would only occur when at least 41 senators oppose ending debate. Therefore, any individual senator would have a lot of potential partners with whom to organize to keep a single filibustering senator on the floor.

For example, if a bill affects oil drilling off of the coast, many senators from coastal states would work together to filibuster the bill. And certainly, if a bill attacked a core value held by an entire caucus, the entire caucus would organize to sustain the filibuster. On any major issue, allies could be found among the 41 senators voting to continue debate to keep at least a single senator on the floor and the 60-vote requirement for cloture firmly in place.

Would the talking filibuster block action by 51 senators through budget reconciliation?

No. The talking filibuster would provide strong tools to protect the minority from getting trampled. These tools would not, however, apply in the context of the reconciliation process under the Budget Act. Under that process, the majority can and has passed major legislation by simple majority. Reconciliation will continue to be an instrument through which the majority can seek to change policy in areas of major concern to minority caucuses, such as health care policy.

Would the talking filibuster affect a "lone-wolf" senator utilizing a hold to slow things down?

No. When a senator places a hold on a bill or a nomination, the senator is declaring that he or she would object to a unanimous consent request to close debate on the bill or nomination. Since such holds and consent requests would occur before a cloture vote, and the talking filibuster would occur after the cloture vote, the talking filibuster has no impact on senators' rights to place holds.

In addition, the talking filibuster does not prevent a single senator from attempting to slow things down by making a lengthy speech during regular debate on a bill or during the talking filibuster.

Full disclosure: My firm built Jeff Merkley's campaign website. I speak only for myself.

By Kari Chisholm Dec. 13, 2012