Oregon senator mounts a one-man crusade to reform filibuster

To say that the U.S. Senate has become dysfunctional is to suggest that the water is wet or the night sky is dark.

The institution that considers itself “the greatest deliberative body in the world” is meant to serve as a cooling saucer that tempers the most impetuous House, applying weight and wisdom when tackling the big issues of our time. Instead, it has devolved into an unsightly mess of gridlock and partisan hacking.

This is due in part to the filibuster, one of the Senate’s most distinctive features, which over the past decade or so has been abused and misused to such an extent that it has become, in the words of congressional scholar Norman J. Ornstein, a singular “weapon of mass obstruction.”

Democrat Jeff Merkley, the junior U.S. senator from Oregon, has spent years on a mostly one-man crusade to reform the filibuster and restore some sunshine and self-discipline to the House.

In 2022, Merkley and her allies came within two votes of changing the filibuster on voting rights legislation. It continues to seek support for a broader overhaul.

“This is critical so that people can see what their representatives are debating and then have a chance to give their opinions,” Merkley said, speaking from the Capitol after a Senate vote.

“Without the public being able to see the obstruction,” he said, “they [can’t] really answer it.

What follows is a discussion of the congressional process, but before your eyes glaze over, you need to understand that process is what determines how many things get accomplished – or not accomplished – in Washington, DC.

The filibuster, which has changed over time, concerns the length of time senators are allowed to speak on the Senate floor. Unlike the House, which has rules limiting debate, the Senate has no restrictions unless a vote is taken to specifically end discussion and bring an issue to resolution. We’ll talk about that in a moment.

In the broadest sense, the filibuster is a way of protecting the interests of a minority of senators, as well as those of their constituents, by allowing a small but determined number of lawmakers – or even a single member – to prevent a vote by standing up and talking incessantly.

Perhaps the most famous, and certainly the most romanticized, version of a filibuster took place in the movie “Mr. Smith Goes to Washington.” Fictional Senator Jefferson Smith, played by James Stewart, talks himself into an exhausted breakdown as a way to gain national attention and expose political corruption.

Filibuster James Stewart received a leading actor Oscar nomination for his portrayal of Senator Jefferson Smith in the 1939 classic “Mr. Smith Goes to Washington.”

(From the Academy of Motion Picture Arts and Sciences)

In Frank Capra’s classic, the good guy wins. (This is Hollywood, after all.) In real life, the filibuster has often been used for less noble purposes, including thwarting civil rights legislation for decades.

The filibuster used to be a rare thing, its power applying to all but the most important issues. But in recent years this has changed dramatically. The filibuster – or rather the threat of a filibuster – has become almost routine.

Part of the reason is how easy it has become to clog the Senate.

Members no longer need to hold the floor and talk non-stop, testing not only the power of their argument, but also their physical courage and bladder control. Nowadays, it is enough for a legislator to simply declare his intention obstruct. Typically, the bill is then shelved while the Senate moves on to other business.

This painless approach changed the very nature of the filibuster, Ornstein said, and transformed the way the Senate works, much to its detriment.

The onus is “supposed to be on the minority to actually put themselves on the line to generate a broader debate” — in the manner of the fictional Jefferson Smith — “and hope in the course of it that they can overturn opinions,” said Ornstein, a senior fellow at the American Enterprise Institute. “What has happened is that the burden has shifted to the majority [to break a filibuster]which is a bastardization of what the filibuster is supposed to be.

It takes 60 votes to end a filibuster, invoking cloture, to use Senate terminology. This means that the adoption of a law now requires a qualified majority of the 100 members of the Senate. (There are workarounds that, for example, allowed President Trump’s massive tax and spending bill to pass 51-50, with Vice President JD Vance breaking the tie.)

The filibuster gives disproportionate power to the minority.

To cite just two examples, there is strong public support for universal background checks for gun buyers and greater transparency in campaign finance. Both issues have majority support in the Senate. Never mind. Legislation aimed at reaching each of them has been repeatedly filibustered.

This is where Merkley would come in.

It will not eliminate the filibuster, a prerogative jealously guarded by members of both parties. (In a rare show of independence, Republican senators rejected President Trump’s call to abandon the filibuster to end the recent government shutdown.)

Rather, Merkley would eliminate what has become known as the “silent filibuster” and force lawmakers to speak up and publicly make their case until they prevail, give up, or physically give up. “My reform is based on the principle that the minority must have a voice,” he declared, “but no veto.”

Forcing senators to stand up and keep their commitments would make the filibuster more difficult, end its overuse, Merkley suggested, and – ideally – engage the public by sending private messages to fellow senators – I disagree! – No.

“Because it’s so publicly visible,” Merkley said, “American citizens have the opportunity to weigh in, and there are consequences. They can portray you as a hero for your obstruction, or as a bum, and that will be reflected in the next election.”

The power to repair itself rests entirely with the Senate, where lawmakers set their own rules and can change them as they please. (Nice job, if you can get it.)

The filibuster has already been changed. In 1917, senators adopted the rule allowing debate to be closed if a two-thirds majority voted to end debate. In 1975, the Senate reduced that number to three-fifths, or 60 members.

More recently, Democrats changed the rules to prevent obstruction of most presidential nominations. Republicans have extended this to Supreme Court nominees.

Reforming the filibuster is not a panacea. The Senate has degraded itself, ceding much of its authority and becoming little more than an arm of the Trump White House. A correction that requires more than a procedural overhaul.

But forcing lawmakers to stand their ground, make their case, and seek to rally voters instead of lifting a finger and paralyzing the Senate? This is something worth talking about.