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Scot Lehigh

The key to restoring the broken Senate

Abuse of the filibuster has created a default culture of disfunction

By Scot Lehigh
Globe Columnist / January 5, 2011

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BEFORE HE was elected to the US Senate in 2008, Jeff Merkley served as speaker of the Oregon House of Representatives — and that experience has convinced him that things need to change in the upper chamber.

“One of the things about coming from a state legislature, where you hold daily debates, is that it puts in stark contrast the fact that the Senate has virtually no deliberations,’’ said Merkley. “I hope to see a Senate someday that debates things again.’’

To revive the Senate, Merkley said, senators must reform the filibuster, whose abuse has rendered the place a dysfunctional body where little happens until 60 senators can be assembled to overcome that delaying maneuver.

He and several other Democrats, including fellow first-termers Tom Udall of New Mexico and Amy Klobuchar of Minnesota, plus grizzled veteran Tom Harkin of Iowa, are spearheading an effort to do just that.

But wait — wasn’t the filibuster lovingly designed by the constitution’s crafters to protect the rights of the states? Actually, no, it’s not an intentional constitutional creation, but rather a development of accidental origins.

In his farewell address to the Senate in 1805, Vice President Aaron Burr recommended that senators weed out their rules. One he singled out for possible pruning allowed a majority to end debate by voting to move the previous question. In the next session, the Senate acted on Burr’s advice. But that change was merely a matter of streamlining the rules, not a considered decision to allow unlimited debate, says Norm Ornstein, a leading congressional scholar.

“It took until the 1830s for them to realize what the consequences were,’’ Ornstein said. “After that, you began to see individuals or groups of individuals operating in concert to take the floor, keep the floor, and keep action from happening.’’

Still, the filibuster was used sparingly until relatively recent times. But over the last two decades, it’s evolved to the point where filibuster threats are such a part of Senate practice that it now takes 60 votes to pass anything at all controversial.

So how to return the filibuster to its traditional role as an important prerogative, but one reserved for truly pivotal issues, while restoring the Senate to a lawmaking assembly where a simple majority suffices for most business?

Merkley has this basic fairness test: Any reforms must be something the Democrats would be comfortable with if they were in the minority. For him, that means a real chance for minority-party senators to have their amendments debated. He’d pair that guarantee with a requirement that filibustering senators conduct an actual talk-a-thon. It’s beyond comprehension that a senator “has the power to delay the work of the Senate and yet you don’t even have to present your case to the American public,’’ Merkley said.

And yet, that’s the way the Senate currently operates. When a senator announces an intention to filibuster something and the majority doesn’t have the 60 votes for cloture, the Senate usually just sets that matter aside and moves on.

The reformed filibusters Merkley envisions could end in one of two ways: Either by a cloture vote — the current practice — or by the collapse of the filibuster on the floor. When the filibustering forces no longer had anyone willing to speak, the filibuster would end, and the matter would be decided by a simple majority vote.

If would-be filibusterers actually had to, well, filibuster, they wouldn’t engage so reflexively in the threat. And when they did, the public could evaluate their opposition on the merits.

There’s much more that needs to be done to revive the moribund Senate. For example, it’s also important to address the (often anonymous) “holds’’ that individual senators can put on nominations or legislation. Yet it really all begins with filibuster reform.

The discussion starts today, as the Senate commences its new session, and will likely continue for some weeks.

Merkley and his fellow reformers deserve real praise for their willingness to wage this uphill struggle. Here’s hoping they succeed in restoring today’s broken Senate to the more vital and deliberative body of yesteryear.

Scot Lehigh can be reached at lehigh@globe.com.