Over the summer, I get behind on reading the New York Review of Books – so I just finished just got to Michael Tomaskey’s review of two books on the Senate filibuster:
During the (long!) time I’ve been paying attention to politics, I’ve seen the filibuster go from a badge of shame, used only by Southern segregationists to block civil rights laws, to a tool that was used, but rarely, on issues where a particular senator wanted to call attention to a matter of principle, to the current situation — where the press routinely reports, falsely, that it takes 60 votes to pass a bill in the Senate. (It does not – it takes 60 votes to close debate, but there are many bills where debate is closed by unanimous consent, even though some senators will then vote against the bill).
The change began in 1993, when Republican senators, led by Robert Dole (R-KS), declared that President Clinton’s mandate was illegitimate, since he had not received a majority of the popular vote, and set out to block all of Clinton’s initiatives through the filibuster. This tactic succeeded in making Clinton look ineffective, and helped produce the Republican victory of 1994, when they won a majority of the House for the first time in almost 50 years.
In 2009, the Republicans decided that the same strategy would work again, so they strove to block all President Obama’s initiatives, with considerable success. It is understandable that the Republicans would do this; the more interesting questions is what the Democrats will do about it.
The Democrats were able to pass the national health care bill through the budget reconciliation procedure, but this was possible only because they had previously (before the Massachusetts special election) overcome a filibuster to pass the original bill. But they now find almost all their legislation blocked in the Senate.
This need not be! There are several ways a determined majority can overcome a filibuster, even without 60 votes. The easiest would be to simply change the rules of the Senate, so that debate can be ended by majority vote. Traditionally, changes in the rules were themselves subject to the filibuster — but it is not clear that this is so when a new Congress reconvenes. The issue is whether the rule allowing the filibuster is already in effect before the rules are adopted. Some argue that they are, because the Senate is a “continuing body” – with two-thirds of its membership continuing from the previous Congress. Others have maintained that the Senate is in the same situation as the House – the rules must be adopted with each new Congress. Provided the Democrats still have a majority, and are willing to stick together, Vice President Biden could simply rule that the Senate is not a continuing body. The Republicans could then appeal the parliamentary ruling, but that ruling could be upheld by majority vote.
More drastically, Biden might accept the strong case that can be made that the filibuster is unconstitutional (since, among other things, it violates the one-person, one-vote principle). In that case, he would not have to wait until January, but could act right now, when the Senate comes back into session.
Failing a rules change, the Democrats could also make political gains by forcing the Republicans to really filibuster. These days we have a sort of virtual filibuster — the minority says “we are filibustering,” and the majority says, “Oh, all right then,” and drops the issue. That way, the public sees that Congress is not doing anything, but they don’t really see why. Imagine how it would different if Republican senators were standing up and reading phone books in order to block a minimum wage bill.
So it can be done! And it should be — there’s nothing democratic about minority rule. The real issue is why the Democrats don’t do it. I fear that the answer is that they (or too many of them) are corrupted by the benefits they can get from it themselves, the opportunity to serve a district interest (or a major contributor) by putting a hold on a bill until their concerns are met. As long as this is the norm, we will continue to see an ineffective Congress. This will only change if public awareness of the filibuster rises to the level it had in the 1960s.