Sen. Merkley: We must make the filibuster work as intended

>>> this senator will not allow that bill to come for a vote. if i have to stay on the floor all night and all day tomorrow and do whatever i have to, i am prepared to do it.

>> i thought that i would end this about 8:00, but i'm feeling a little better and i've got great kidneys and i've got some of these loss seng gers here.

>> i'll be doggone if i'm going to allow any other legislation go through right down on the border the mexico way

>> the new york senator, alphonse demat tow filibuster in 1992 over an extremely obscure provision of tax law that he thought was going to screw over new yorkers. rich, you wanted to reresponsibility quickly before i go to the senator.

>> yes. i wanted to say i'm not a professor of constitutional law , but i can read the plain language of section 5 which says that the senate gets to write its own rules, and rules about debate, the length of debate are well within that constitutional competence of the senate .

>> sure. and it gets to majority rule , by majority rule . this document.

>> that brings us to the constitutional option which is to say at the beginning of a senate they adopt the rules and they can by a majority of rules. i want to bring in jeff merkley . senator, good morning. you are not trying to scrap the filibuster. tell me what your goal is in the reforms that you have proposed.

>> yes. we're trying to make the filibuster actually work the way it was intended. that is, that folks have to make their case known before their colleagues, before the american public. that they can't simply obstruct, use a filibuster, the silent filibuster we have now to obstruct bills and kill bills in the middle of the night . so clearing the path to the floor enhances debate. getting things to conference committee certainly doesn't subtract from debate and moves the process forward. the talking filibuster says that if you're going to obstruct or say there should be more debate, you have to make your case and the public can weigh in on whether you're a hero or a bum.

>> if a cable news viewer has woken up early and they're saying, why am i watching these people talk about how they're going to run their meetings? what are the substantive takes for citizens in what can appear to be an arcane debate?

>> it has to do with this. we have huge issues facing america. many folks are talking about the fiscal cliff and if we can't have dialogue and decision making in the u.s. senate , then our government is unable to respond to the big issues that we face. and i can tell you my perspective comes from having gone first to the u.s. senate when i was 19. it was 1976 and i covered the tax act of that year and i saw amendment after amendment, brought up, debated, decided. that's the way the senate generally work. the senate is completely different today. it's paralyzed and broken in a way no one could have envisioned a couple of decades ago.

>> i want to show some data on that point. culture motions have skyrocketed. percent of judicial nominees confirmed by the president for barack obama is 42.8%. you see there in the 90s and 80s and then they go down dramatically. and to give you a sense of how things have changed historically, this is an important historical document . we all know when we cover politics, they're counting votes. they only have 58 votes in the senate . not going to happen. this is from 1964 and this is a note from president lyndon johnson 's senate liaison mike manatos and he is writing to johnson's campaign director. are we going to get medicaid passed. of the 49 votes cast on behalf of medicare, we lost two supporters. we also had three supporters who missed the vote this year. thus, if all of our supporters are present and voting, we would win by a vote of 55-45. in 1964 you have a note that says a bill about mehdi care will be filibustered. you said that the way that this works is only if the minority exercises restraint. do you think that restraint has been lost?

>> it seems to have eroded. i do want to correct something that you said earlier about the senate adopting its rules. the senate does not adopt its rules. it's continuous. the senate does not need to and in fact does not adopt its rules every year. the senate has litigated whether it is a continuing body and they have decided it is, in fact, a continuing body. you said medicare was able to pass with less than 60 votes. the seb nate has functioned for over 200 years with unlimited debate. it has managed to do that. the contract between majority and minority has been sound for over 200 years.

>> then what's changed?

>> possibly the fact that there is 24/7 news cycles. what's changed is in the province of the political scientists , it's not in the province of we the parliamentarian.

>> wait a second. i want to press you on this. you have seen what has happened. i want you to tell me, is it correct that the norms of what gets filibusters have changed over your time in the senate ?

>> it does appear that the norms have changed, yes, but there is an underlying principle of empowering the minority of restraining the majority that i do believe is consistent with the framers' intent that has worked. it's worked through the civil war , it's worked through the civil rights era . it has worked. and i think it's an extremely important institutional political imperative that the minority has the ability to have input.

>> senator --

>> meaningful input.

>> senator, i want to get your response to that and ask you if you are preserving that principle.