Jeff Merkley and Mike Zamore only needed two votes. The Oregon Democrat and his longtime chief of staff had rallied almost all the Senate Democratic Caucus around a proposal to change filibuster rules on election bills. The change would have paved the way for voting rights legislation Democrats had been pursuing for years.
But the objections of West Virginia Democrat Joe Manchin III and Arizona independent Kyrsten Sinema thwarted that effort in 2022.
“We came out of it feeling like we had moved the ball way down the field, even if we didn’t get into the end zone,” said Zamore, who left the Hill last year and now works as national director of policy and government affairs at the ACLU. “Jeff looked at me across his desk one day and just said, ‘We’ve got to write down everything we learned.’ Because we had spent the last year really honing the argument.”
Zamore remembers that moment clearly. The result is their new book out this month, “Filibustered!: How to Fix the Broken Senate and Save America.”
The pair set out to write from their own experience, carving out personal time on top of their Senate duties to dig into their mutual obsession.
“He and I have a lot of history together and think very, very similarly about these issues. So that was a very strong foundation to build on,” said Zamore, who worked for the senator for 14 years. “His wife said, ‘I’m so glad you guys are still talking to each other after this process.’ But I think we came out of it both really proud of the work product and happy with the partnership.”
It’s no secret that Merkley wants to end the filibuster as we know it. The progressive Democrat has made his name in the Senate as a leading wonk on the issue, and he seals that reputation with a dose of history.
“Today’s Senate is just a dramatically, dramatically different thing than what came before it, what was intended by the founders,” Zamore said. “If you’re standing by the status quo of the Senate, you’re not an institutionalist.”
A procedural tool with 19th-century roots, the filibuster allows for unlimited debate in the Senate. It’s been regularly deployed in recent decades to block meaningful legislation and has drawn the ire of members of both parties.
Merkley helped lead the 2013 charge to lower the cloture threshold for most presidential nominees, and then helped launch the 2017 filibuster that led then-Majority Leader Mitch McConnell to extend the precedent to Supreme Court nominations so the Senate could approve Neil M. Gorsuch by simple majority.
It doesn’t have to be this way, Merkley and Zamore argue. They paint a rosy picture of days gone by, when senators abided by “the Code,” or the “culture that guided legislative debates,” discouraged petty obstructions and allowed the majority to pursue and pass its legislative agenda.
According to Zamore, an early iteration of the filibuster emerged in the early 1800s to undermine “the Code.” In a famous example, southern senators led by South Carolinian John C. Calhoun deployed a proto-filibuster technique by introducing a flurry of amendments to postpone a vote on a national bank they feared might hurt their slave-based, agrarian economy.
The book travels through other well-known moments in the filibuster’s history, including its use by segregationist senators opposed to civil rights legislation. South Carolina Sen. Strom Thurmond launched the longest-ever speaking filibuster — pontificating from the Senate floor for more than 24 hours — in opposition to the Civil Rights Act of 1957.
And Zamore sees a key turning point in the 1970s, when the Senate lowered its cloture threshold from two-thirds of voting members to three-fifths of the full Senate. That change precipitated a shift away from the active, speaking filibusters of the past to a more passive form, wherein a member merely needed to signal his or her disapproval, whether present for a vote or not.
“The completely inadvertent impact of that change was to take the burden out of the filibuster. So now, as opposed to engaging in the act of filibustering that was the hallmark of these rare obstructive efforts for 200 years, you had the ability to just signal, ‘I am not okay with this vote,’ and then cloture is required,” Zamore said.
That’s how things got the way they are today, in the view of the co-authors.
“You take that kind of hyperpolarization process that started with the Gingrich revolution and add in Fox News and the distorting of the parties ideologically, and then you hand Mitch McConnell the tool of the filibuster with those incentives and political imperatives, and you get what we now have — which is essentially a requirement to get cloture on every single vote, even the ones that end up passing 99 to nothing or whatever,” Zamore said.
The solution, they argue, is to eliminate the filibuster on motions to bring bills to floor and on amendments. They also propose eliminating the “no-effort filibuster” on final passage by reinstating the “talking filibuster.”
“What we think people really want is the way the Senate used to work,” Zamore said.
He and Merkley have been spreading that message as they promote their book this month.
Zamore is under a one-year post-employment lobbying ban and is limited in how he can advocate for the changes he proposes. But he believes a change to Senate filibuster rules is inevitable and the current system of “minority rule” in the Senate is unsustainable.
He joins a small club of Senate staffers who have penned books about the filibuster, drawing on their service behind the scenes — another is “Kill Switch” author Adam Jentleson, who once worked for Harry Reid and now is chief of staff to Sen. John Fetterman. And even more staffers should be working to improve the broken aspects of the congressional system, Zamore said.
“I don’t think everyone needs to write a book by any stretch, but I do think that people need to be thinking big, because if we’re rearranging the deck chairs, we can make marginal improvements, but you know, the system is rigged, and you need to unrig it,” Zamore said.
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