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A bipartisan pair of senators wants to do something bold before a new Congress takes over: Fix the Senate’s frequently maligned rules.
No, Sens. Jeff Merkley, D-Ore., and Steve Daines, R-Mont., don’t want to end the filibuster. But they have a proposal that would allow more bipartisan bills to get votes, end time-wasting procedures, and actually allow popular bills to come to the Senate floor and pass, according to details reviewed by Semafor.
“More bills passed, more votes taken, less time wasted. That sums up,” Daines told Semafor in a joint interview with Merkley.
It’s a big undertaking for the odd couple, but the effort has more momentum behind it than one would expect. Merkley is the Senate’s resident rules expert and has literally written the book on Senate gridlock. Daines, who is retiring, is close to two of the people they’ll need on board to pass the proposal: President Donald Trump and Senate Majority Leader John Thune. When Daines started exploring how to fix the Senate, all roads led to Merkley, who wrote Democrats’ last rules change proposal and spearheaded the push to end the 60-vote threshold for nominees.
The senators told Semafor they hear plenty of complaints from their colleagues about the Senate’s sluggish progress as an institution. One senator can force a week of debate on a popular bill, the government often runs on zombie continuing resolutions, and securing an amendment vote often requires consent from all 100 senators. What’s more, plenty of time is wasted for antiquated time rules like the “intervening day” on legislation or “post-cloture time” — things Senate hopefuls aren’t exactly briefed on when they launch their campaigns.
“‘We had productive professional lives in functional institutions, and what the hell happened to the Senate?’” Merkley said, summing up complaints he’s heard from colleagues. “The American people are saying the same thing.”
“One thing you see here is people thinking about going home and being a governor. Why? Because states are not paralyzed the way the US Senate and House are,” the Oregon Democrat added. Daines agreed: “We have morale challenges now in the United States Senate.”
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The two senators have four major asks: They want to get rid of procedural (known as cloture) votes to begin debate on nominees, bills, and amendments while retaining the ability for the lawmakers in the minority to oppose efforts to close debate on controversial bills via the filibuster. Under their proposal, the intervening day before a vote to break a filibuster would be eliminated and debate time condensed, removing dead time from the Senate floor.
They also want to establish a fast-track suspension calendar, not unlike the House, that would allow the Senate to more quickly take up bills at a supermajority requirement of two-thirds of the Senate. Debate time for those bills would be limited and require coordination from committee leaders in both parties to get on the fast-track.
Daines and Merkley also want committee leaders to have a one-day fast-track for considering popular bills with strong committee support from both parties that would allow those bills to pass the Senate with a simple majority. Finally, their proposal would give Appropriations Committee leaders a quick route to the Senate floor for popular spending bills with plentiful spending amendment opportunities.
It’s a tradeoff that would still allow the Senate minority to stop party-line bills or those without broad support and require real work by committee chairs and ranking members to get their products on the Senate floor.
But it would ensure that, like the House, a bill with two-thirds support can come to the floor quickly. It would minimize the ability of a single senator to block bills with huge support, like last week when Sen. Rand Paul, R-Ky., blocked the popular Kids Online Safety Act.
“The goal here is to not make this a political fight. I think what we have proposed here is durable, regardless of which party is in power. We realize the benefits, no matter if Ds or Rs have a gavel,” Daines said. “Across the last four Congresses, there have been 665 bipartisan bills passing through committees that go to the elephant graveyard.”
The pair is already talking to their respective party leaders about modernizing the Senate rules and they’re optimistic about getting it passed at the required 67-vote threshold for a rules change. Daines is keeping Thune apprised.
Thune spokesman Ryan Wrasse said “Thune is always open to discussing ways to make the Senate function in a more effective and efficient way, and he applauds Sen. Daines for thinking outside the box. Since no rules change can be implemented unilaterally, building a bipartisan consensus will be key to any modification of the existing process.”
Merkley said he talked to Senate Minority Leader Chuck Schumer and the Democratic leader “didn’t say, ‘stop the discussion.’”
Schumer and Thune “recognize that there is frustration and dysfunction that merits a conversation,” Merkley said.
Trump, of course, wants to just kill the filibuster entirely. But Daines said the president’s team is engaged in their talks too.
“We also ran the traps with key players in the White House. And got a thumbs up on it,” Daines said.
In an ideal world, they said they’d also move the Senate more toward a talking filibuster and restrict the use of party-line budget reconciliation bills in order to reduce deficit spending. But they are starting with what they believe are broadly popular proposals that could get the chamber to devote a time to debate the rules — preferably before Daines leaves office.
That hasn’t happened for awhile. Recent changes to Senate precedent have been made using the unilateral “nuclear option” which can be done in a party-line fashion by the majority. The next time a party uses the nuclear option to change Senate rules, they might nuke the supermajority requirement altogether, Merkley warned.
“If we don’t solve this, eventually one team or the other is going to get rid of the filibuster,” Merkley said. “Then the Senate really does become the House.”
Burgess’s view
The senators are right — serving in the Senate kind of “sucks,” as former Sen. Joe Manchin famously put it. If you don’t know what a quorum call is, you will learn pretty quickly if you toss on the Senate livestream when the chamber is in session (it’s basically an empty Senate). It’s no wonder four sitting senators ran for governor this cycle.
Merkley and Daines are trying to find changes that everyone can live with, so their ideas could conceivably pass no matter who wins in November. But despite the happy talk, I have plenty of reasons to be skeptical.
Right now any one senator can stop a bill from passing quickly by themselves. So to give the Senate itself more power to pass popular bills, the pair will need to find 67 senators willing to dilute their own individual power — at least just a little bit.
It might be possible when no one believes the Senate is working as it should. The big question is whether, after a hard-fought midterm election, party leaders want to prioritize Daines and Merkley’s ideas.