A Liberal Lion With No Roar

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POLITICS JULY 11, 2013

A Liberal Lion With No Roar How the Senate has frustrated Jeff Merkley

In another time, Oregon Senator Jeff Merkley would have a list of liberal accomplishments a mile long. While most first-term senators specialize in a few issues, Merkley seems to have a hand in every matter of even marginal relevance to progressives, from civil liberties to housing to LGBT rights to agriculture to banking to climate change to the war in Afghanistan. “He’s progressives’ best-kept secret,” said Becky Bond, political director of the progressive activist group CREDO.  “When we’re looking for someone in Washington to carry forward issues we care about, time and time again, the person in the lead turns out to be Jeff Merkley.”

Merkley was instrumental in fashioning the Dodd-Frank financial reform package, authoring measures curtailing predatory mortgage lending as well as the Volcker rule to ban risky proprietary trading by deposit-taking banks. He has proposed numerous climate bills on energy efficiency and electric vehicles, which have been used as models in Obama Administration budgets and even drawn Republican co-sponsors. He championed repeal of the so-called “Monsanto Protection Act,” a provision anonymously tucked into a spending bill which gave the agribusiness giant legal immunity from judicial rulings. He has butted heads with the White House over full combat withdrawals from Afghanistan and, more recently, the NSA’s surveillance programs. And he just found the 51st vote for the Employee Non-Discrimination Act, gay rights legislation bequeathed to him by Ted Kennedy, the previous sponsor.  

“In a simple majority Senate, we’d be done with that now,” Merkley said ruefully in a recent interview. But Merkley entered Washington at a time of maximum obstruction and gridlock. He was elected to the Senate in 2009, at the height of one-party Democratic control of government. And yet, right from the beginning, he despaired about the dysfunction in the Senate, where the moniker “the world’s most deliberative legislative body” now works as a punchline. Most of the time, the chamber is empty, while the leaders of the two parties work out whether and how to proceed on daily business. In 2009, Merkley was often the only Senator present, serving as presiding officer (a role required of incoming freshmen), hearing base-pleasing speeches accompanied by little action.

“Everything felt like a partisan talking point,” Merkley said. “There were so many big issues at that time, I kept waiting for the ‘let’s get to work’ moment to start legislating. But it never came.”

Jeff Merkley is one of the small handful of Americans who actually remembers a time when the Senate was a competent legislative body. In 1976, he interned for a summer for liberal Republican Senator Mark Hatfield. He was given responsibility in the office for tracking the Tax Reform Act of 1976. In this era before the Internet or C-SPAN, it was customary for Senate staff members to sit in the gallery every day and watch the debate, so they could inform their bosses about what votes would come up on a given day.

“There were no agreements between the parties on amendments,” Merkley said. “The Chair would call on whoever he heard first. And they would have the debate. There was never a thought about a filibuster. Lyndon Johnson, in six years as majority leader, only filed for cloture once. Harry Reid has done it 391 times.”

This breakdown of Senate norms since the 1960s has amplified the ability for the minority to block progress. Minority Republicans now routinely require a 60-vote threshold for everything, and deny unanimous consent on even the most mundane business. Even in that short window in 2009, when Democrats had 60 votes and the ability to overcome filibusters, Republican obstructionists would use various tactics to force long delays and slow down the Senate calendar. It's gotten so bad that nobody even wants to be a Senator anymore.

Merkley stands out as someone willing to work within this system and improve it, perhaps because of his past experience as a kind of turnaround artist for dysfunctional legislatures. He had presided over a highly productive session as the speaker of the Oregon House in 2007 and 2008, despite a lot of partisan rancor (the previous Republican leader once called Democrats “the irrelevant caucus”).

“We were out of the majority for 17 years, so we had a big list,” said Peter Buckley, a state representative in Oregon who worked closely with Merkley at the time. “After every single meeting, Jeff would say, ‘we’re going to do this, and this, and this, and we’ll adjourn on time.’ Just to keep our focus. And in the end, the Oregonian printed a headline about the session, it read ‘On Target, On Budget and On Time.’”

The success had a lot to do with making sure members of both parties felt respected. “He always appointed an opposition vice chair to every committee,” Buckley said, “and required weekly meetings between the chair and vice chair. He encouraged Democrats and Republicans to sit together on the House floor. He wanted to break open communication.” The changes in Oregon became inured in their legislative culture—even a 30-30 split chamber in 2011 managed to get their budget and key legislation accomplished.

Merkley saw it as vitally important to do for Washington what he did for Oregon, allowing for Congress to meet the nation’s challenges without stumbling into self-created roadblocks. Despite his relative inexperience—or perhaps because of it—he took a leadership role in fixing Senate rules, along with fellow freshman Tom Udall from New Mexico. “I said to the leadership that it was not acceptable for the body not to function,” Merkley said. “They said great, start talking to folks.”

Merkley and Udall outlined a series of preferred changes to the Senate rules, which included eliminations of the filibuster on the motion to proceed to legislation (in other words, allowing the Senate to end debate on whether or not to begin a debate), and the “talking filibuster,” forcing any minority seeking to block a vote to go on the Senate floor and state their case. The plan was to make the changes at the beginning of the new legislative session, and they tried this in 2011 and 2013. Efforts to corral a half-dozen Republicans into supporting the changes fell apart because of the partisan divide. “They thought we were on the right track, but they just couldn’t step forward,” Merkley said. But Merkley and Udall needed only a simple majority to change the rules. His biggest challenge, ultimately, was convincing old lion members of his own party, disinclined to change rules that maximized their power and worked to their benefit in the minority.

The deepest divide on fixing the Senate was with Carl Levin, Merkley’s partner on the Dodd-Frank measure known as the Volcker rule. (Merkley is quick to correct people by calling it the Volcker firewall—“when you say rule, everyone’s eyes glaze over.”) Levin was adamantly opposed to changing the filibuster, and he and Merkley did sit down to try to work out their differences. “We just reached different conclusions,” Merkley said. “I would love for the vision Carl wants to be possible, where the Senate could work together on procedure and move forward. So we brainstormed another way, and we just couldn’t bridge the gap.” Levin basically succeeded in curbing any meaningful reforms; the toothless rules package that passed in 2013 matched his recommendations exactly.

However, the situation is on the cusp of a major showdown in July, when Majority Leader Harry Reid has threatened to use the so-called “nuclear option” to force up-and-down votes on executive branch and judicial nominees. Pending confirmation votes for the Environmental Protection Agency, Consumer Financial Protection Bureau and National Labor Relations Board represent the key test cases; if Republicans block those nominees from up-or-down votes, Reid has said, he will act to establish majority rule on nominations. Reid acknowledged that Merkley was right in pushing for stronger changes, and you can sense some momentum toward resolving the gridlock and advancing at some level to eliminate the perpetual 60-vote threshold, at least on nominations. Leaders of Senate rules reform credit Merkley’s persistence for that. 

Merkley has also butted heads with his Democratic allies in the White House on several issues. One week into his Senate term, Congress had to determine whether to allow the second tranche of TARP funds to go to banks, and Merkley, along with several other progressives, was undecided. Larry Summers, then chief economist for the Obama transition team, wrote a letter to Merkley vowing that, in exchange for the vote on the TARP release, the Administration would “commit substantial resources of $50-100B to a sweeping effort to address the foreclosure crisis” and lead an effort to “reform our bankruptcy laws” by allowing judges to modify mortgage terms. Neither of these things happened. The “sweeping” effort to stop foreclosures has largely failed to reach its goals, and the Administration stood mute as bankruptcy reform fell short in the Senate.

Most recently, Merkley has inserted himself into the debate over the National Security Agency’s surveillance programs. Despite not being on the Intelligence Committee, Merkley had been arguing for years that the NSA’s data collection policies were too broad and not sanctioned under statutory language. At a recent hearing with NSA chief Keith Alexander, Merkley waved his Verizon phone and asked “what authorized investigation gave you the grounds” to seize metadata from everyone’s phone calls, including U.S. citizens. When top secret data revealed these secret spying programs, Merkley and a bipartisan group of colleagues readied legislation to ensure additional transparency, by declassifying the secret FISA court opinions that allowed the novel interpretations of what Congress authorized. The President is on the verge of declassifying some cases, thanks in part to Merkley’s persistence. “I appreciate the President’s interest in making the opinions public,” Merkley said. “The Administration was definitely upset with me when I said the court interpretations did not square with the letter of the law.”

On housing, Merkley designed two pilot programs that could become a national model for preventing foreclosures, leveraging public money to help people buy back their homes. All 76 participants in the first pilot program have remained current on their loans, cutting their debt by over $100,000 on average. But the Treasury Department has shown no interest in expanding Merkley’s model. So he’s taken it to other federal agencies, along with private banks (he just secured the participation of one). This need for endless creativity to get anything done shows how far modern Washington has strayed from the civics-class conception of how to simply make laws. But Merkley has simultaneously taken on the challenge of fixing Washington while fixing America’s problems.

As he transitions to re-election next year, Merkley may not have as much time to burrow into policy matters or fixing the Senate. “I spend about one-quarter to one-third of my time raising money and networking,” he said, and he expected that to grow next year. The flurry of campaign spending and threatened attacks tend to turn other Senators inward, too cautious to step out on any issue. That’s not Merkley’s style. “I don’t see the point of being in the Senate otherwise,” he said. “If there’s an issue where things don’t seem right, my view is I shouldn’t be silent.”

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