Sen. Dick Durbin (D-Ill.) convened a Zoom conference late last year to talk ideas about the filibuster and other Senate rules with his caucus.
By the second call, Durbin had turned the effort over to Sen. Jeff Merkley (D-Ore.), who has a lot of them.
“He really took a personal interest in it. … By the next time we had a conference call I said, ‘I want to turn this over to Jeff,'” Durbin said.
Merkley, 64, is at the center of the caucus’s increasingly public debate over whether to reform the 60-vote legislative filibuster, a decision that will have deep ramifications for how many of President Biden’s big campaign promises can get through the evenly split 50-50 Senate, where Democrats control the majority because they hold the White House.
Merkley has been intensely but quietly lobbying his colleagues about the potential for changes to the filibuster, as well as taking part in a bipartisan group discussing smaller rules changes, efforts he ties to a decision made last year when he ran for a third term.
“I was wrestling with whether to run for reelection. I’ve got a limited number of years of life. I could do many different things. … I thought well if I run for reelection it’s going to be because I make an all-out push to restore the Senate as a functioning body,” Merkley told The Hill, noting that he’s spoken to every member of the Democratic caucus over the past year.
Those discussions became significantly less abstract earlier this year when Democrats swept the two Senate races in Georgia, adding significant fuel to calls from outside groups and progressives for Democrats to invoke the “nuclear option” in order to kill the filibuster.
Since then, a growing list of senators have come off the fence, either to call for the end of the 60-vote threshold altogether or to endorse significant reforms like changing it to a “talking filibuster” that would require opponents to physically stay on the floor to block a bill.
Others haven’t explicitly endorsed killing it off but are open to a discussion, including red-state Sen. Jon Tester (D-Mont.), Biden ally Sen. Chris Coons (D-Del.) and Sens. Jon Ossoff and Raphael Warnock, the Georgia Democrats who gave the party control of the Senate.
Sen. Tim Kaine (D-Va.), another senator in the middle of the debate, credited Merkley with “doing great work in talking and listening to everybody.”
“He has been absolutely key to this and he understands this as well as anyone,” Kaine said.
Merkley said the shifts in the caucus reflect a broader recognition among Democrats that they can’t let Republicans block the party’s bigger policy promises when they have broad support.
“People saw McConnell’s tactics under Obama … so having seen it once people are like one, it’s not acceptable for us to tolerate that again and second of all our voters won’t tolerate it,” Merkley said, referring to Senate Republican Leader Mitch McConnell (Ky.).
Given pressure to enact legislation on immigration, voting rights, democracy reform and gun control, Democrats are nearing a point when they’ll have to make a decision as a caucus on the filibuster. Senators say the tipping point is likely to come once a big bill has 50 Democratic votes – and perhaps some Republican support – but gets blocked from a 60-vote margin by the GOP.
Merkley, a Senate intern in the 1970s, said he “didn’t even recognize this institution” when he joined the Senate in 2009. He quickly set his sights on reforming the chamber’s rules, telling The Washington Post in December 2009 that an overuse of the filibuster was a “recipe for paralysis.”
It’s been a slow slog.
In 2011, Merkley and former Sen. Tom Udall (D-N.M.), who retired last year, saw their proposal to gut the filibuster rejected. Instead, McConnell and Sen. Harry Reid (D-Nev.) reached a “gentlemen’s agreement” where Republicans would limit their filibusters if Reid agreed to open up the floor to more amendment votes.
In 2013, Democrats did use the nuclear option to end filibusters on lower courts and most executive nominations, which Merkley and Udall touted as a victory. In 2017, Republicans in the Senate ended the use of the 60-vote filibuster on Supreme Court nominations, a move that helped former President Trump add three justices to the court.
To reform the filibuster this time, every Democratic senator would have to vote to change the rules. Merkley said he is discussing a wide array of potential reforms with the caucus.
Senate Majority Leader Charles Schumer (D-N.Y.) has pledged that Democrats will enact a “bold” agenda but hasn’t revealed what steps he’s willing to take if Republicans block legislation. He has said that if Republicans block the agenda, “everything is on the table.”
To change the filibuster, Merkley will need to win over several key colleagues who are against ending the filibuster, including Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.), who have gone public with their opposition.
Manchin, however, praised Merkley as a constructive sounding board on the chamber’s rules, even while acknowledging they represent politically different constituencies.
“Jeff is truly, I believe, a good soul. A good person with a good soul and heart,” Manchin said. “I take him seriously. … He keeps you thinking and that’s good.”
Durbin credited Merkley for helping circulate that idea of reverting to a “talking filibuster” among Democrats.
“Well, there’s been a lot of work done behind the scenes. … Jeff Merkley has been working on this for months, and I was part of that effort, but he really led it and deserves credit for it,” Durbin said. “His notion is that we reach a point where we say, if you’re going to have a filibuster, then for goodness sakes, stand at your desk and speak.”
Though Sen. John Thune (R-S.D.) indicated that some Republicans had previously been interested in a talking filibuster, McConnell shut down questions from reporters in a recent press conference about making any changes. Senators involved in the bipartisan group looking at smaller changes, like reducing the number of procedural hurdles or guaranteed amendments, say they are also making little progress.
Sen. Mike Rounds (R-S.D.) noted that he had talked to Merkley about the smaller changes and that “we want this place to work.”
“[But] so far we don’t have agreement on anything, but we continue to talk about it,” Rounds said, adding that “right now let’s face it the Senate is very dysfunctional.”
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