Bring back the real filibuster

Barack Obama made health care reform a cornerstone of his campaign for President. A key part of the Obama plan was the creation of a health insurance exchange in which Americans could choose between private plans and a government operated, not-for-profit public plan. Three out of four Americans supported the public option while health care reform was under debate this past summer, and it was included in the bill passed by the House. But with all the support it had, the public option could not get through the Senate. An historic chance has been lost.

The public option died because its supporters were not able to overcome a threatened Republican filibuster. The Senate rules permit one or more senators to speak for as long as they wish and on any topic they choose, unless 3/5ths of the Senate (60 out of 100 Senators) brings debate to a close by invoking cloture.

The Democrats have 60 Senators in their caucus, but unfortunately can't count on keeping them all in line. The Republicans, aka the Party of No, have made it a policy to use every means available stop all important legislation from being passed, and to hold up the confirmation of President Obama's nominees for ridiculous reasons. If fact, they have made the once rare filibuster into standard operating procedure, invoking it more than 100 times per year since becoming the minority in 2007. That number is double the filibuster rate of the early 2000's. (In the 1970s, the filibuster was used about 20 times per year, in the 1950s once per year, and in the 19th century twice per decade).

So how did the GOP manage to make 60 the new 50? It's because the Democratic leadership has allowed the threat of a filibuster to substitute for the filibuster itself, stunting debate before it even begins. Majority leader Harry Reid has not been requiring the Republicans to actually hold the floor and continue to speak once they have declared their intent to filibuster. The grand political theater in which a single senator would speak for hours to hold up the passage of a bill is long gone.

Aaron Zelinsky of the Yale Law Journal did a great job of summarizing the situation this week. Commenting on recent suggestions that majority leader Harry Reid should use "the nuclear option" of getting rid of the filibuster altogether, Zelinsky suggested a different course: "What we have today is a cheap and easy filibuster-lite; Senator Reid should reestablish the real thing."

"Traditionally, senators had to physically speak on the Senate floor to sustain a filibuster. Filibusters were costly and dramatic. They truly tied up the Senate and the individuals undertaking them. Members of both parties had to be present during a traditional filibuster, the majority for quorum calls, the minority to sustain the ongoing discussion.  "(The modern filibuster) requires no real action or sacrifice by senators. In recent times, Senators merely notify the Majority Leader of an intent to filibuster, and the Majority Leader delays further action unless he has sixty votes." "Senate filibusters used to require large amounts of time, energy, and dedication. Now they are the legislative equivalent of a Wal-Mart product, available at everyday low prices. The result has, unsurprisingly, been the universality of the modern filibuster, which requires no real commitment but the lifting of a senator's finger."

Zelinsky notes that bringing back the real filibuster would not only help break gridlock on important legislation, it would also force both parties to take the President's nominations for important appointments more seriously:
"Moreover, a return to the classic filibuster would force Senate Democrats to fight for the President's nominations. Right now, filibusters happen in the darkness. The public does not know how many filibusters are occurring. Nominations languish on the back burner indefinitely. However, if the Republicans were required to actually filibuster on the floor of the Senate, Democrats would be forced to mobilize in response and to defend these nominations openly."

Other types of filibuster reform are also under consideration. Senator Tom Harkin's plan would reduce the amount of votes needed to break a filibuster the longer it goes on. Senators would need 60 votes to break the first vote but then the amount of votes needed would drop to 57, then 54 votes and finally 51 votes.

I don't know for sure what approach to reforming the filibuster is best, but I do know that Democrats had better think of something, or risk seeing the federal government go into long-term gridlock. Today, they are occasionally able to get the 60 votes they need to end debate, but that's not going to continue for very long. It is highly likely that the Democrats are going to see a net loss of Senate seats in each of the next three elections. I'm already forecasting a net loss for 2010. In 2012, Democrats will have 24 seats up for reelection, while Republicans will have only 9. And 2014 looks absolutely disastrous.

I heard it said recently that Democrats govern like they're out of power even when they're in power, and Republicans act like they're in power even when they're deep in the minority. Senator Harry Reid, I'm looking at you.

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