By DON McINTOSH
Thanks to the Senate filibuster, workers can’t choose to unionize by card check, tax rules continue to make it easy to offshore jobs, and a pro-labor legal scholar can’t make rulings on labor law despite a presidential appointment. The Employee Free Choice Act, the Bring Jobs Home Act, and President Obama’s appointment of Craig Becker to the National Labor Relations Board had majority support in the Senate, but never got voted on because of threatened filibusters — the Senate rule that it takes a three-fifths supermajority (60 votes) to cut off debate and move to a vote.
Labor isn’t the only constituency unable to move legislation because of the filibuster. Senate work has ground nearly to a halt. The filibuster is why Congress can’t pass budgets on time or at all, and why hundreds of judicial and executive jobs have lain vacant, their appointees frozen out by a legislative body that the Constitution says is supposed to provide “advice and consent” to the president’s appointments.
But this January, says U.S. Senator Jeff Merkley (D-Ore.), filibuster reform has a real prospect of enactment.
The Constitution gives the Senate the ability to direct itself, and that means a newly seated Senate can set new rules. In the past, changing the filibuster rule with a 51-vote majority has been described as the “nuclear option,” because it would limit the historic ability of minorities to block legislation, and thus would poison the collegiality needed to get business done in a body that operates by “unanimous consent.” But critics of the filibuster say that the chamber isn’t getting its business done now — precisely because minorities are gumming up the works.
“The Senate accords privileges to each member that if abused, paralyze the Senate,” Merkley told the Labor Press. In the past, filibusters were rare, Merkley said, “because unless you had an incredibly powerful objection, a once or twice in a career objection, it was considered interference with the basic majority operation of the Senate. Now, it has become a routine tool of obstruction. And therefore the social contract that made it work in the past is gone.”
Lyndon Johnson, in six years as Senate majority leader, faced only one filibuster. Harry Reid, in six years as majority leader, has had 380.
“People say, ‘Didn’t the rules used to be different? Didn’t they used to have to debate?’ and the short answer is ‘no,’ Merkley said. “But when they chose to object to majority decision vote, they felt it was important to stand up and explain it to the nation, take responsibility for it, and brag about it back home if it was popular back home.”
Merkley’s proposed reform, “the talking filibuster,” is modest. If a bill can’t get 60 votes to cut off debate, then senators would have to actually remain on the Senate floor and debate. “The moment there was no one who wanted to speak to the bill,” Merkley explains, “that period of extended debate would be ended, and you would go on with a simple majority vote.”
The advantage, Merkley says, is the public sees the delay, and thus public feedback becomes a valuable part of the process: “If a judge nomination is going to pass by a 95 to 3 vote, I’m not sure how many members would want to stay the night to keep up the debate. You’d get rid of a lot of the frivolous filibusters. And if they did do it, it would give the public a chance to weigh in and say, ‘you’re heroes,’ or ‘you’re bums.’”
Senators Merkley, Tom Udall of Utah, and Tom Harkin of Iowa are seeking filibuster reform, and may have Reid’s support as well; Reid has publicly said he was wrong to oppose the same reform two years ago. Seven newly-elected Democratic members of the Senate are also committed to the cause: Tammy Baldwin of Wisconsin, Martin Heinrich of New Mexico, Heidi Heitkamp of North Dakota, Mazie Hirono of Hawaii, Tim Kaine of Virginia, Chris Murphy of Connecticut, and Elizabeth Warren of Massachusetts. And Maine’s Independent candidate, former Gov. Angus King, won on a platform that included filibuster reform as a major campaign issue.
The U.S. Senate could get a whole lot more interesting if Jeff Merkley’s filibuster reform is enacted.
“The American people want their elected officials to debate and address the major issues of our time and to move past obstruction for obstruction’s sake,” said CWA Legislative Director Shane Larson at a post-election meeting of American Constitution Society in Washington DC. “Now with newly elected senators pledging to overhaul the chamber’s filibuster rules, it’s time to act.”