We've been hearing a lot lately about the evils of the filibuster, particularly in the weeks since the Massachusetts Senate election in January deprived the Democrats of the 60th vote that it takes to block one. "The Republicans' indiscriminate use of the filibuster has made it all but impossible to conduct everyday business in the Senate. On an almost daily basis, the Republican minority just 41 Senators stops bills from even coming to the floor for debate and amendment," Democratic Senator Tom Harkin wrote recently in the Huffington Post. "In the 1950s, an average of one bill was filibustered in each two-year Congress. In the last Congress, 139 bills were filibustered. The Republican abuse of the filibuster is unprecedented, routine, and increasingly reckless."
So it is no surprise that there are calls from Harkin and others to reform the procedures of the Senate changing the rules to lower the number of votes it would take to invoke cloture and bring a filibuster to an end.
That's not going to happen. Democrats are well aware that control of the Senate has changed hands six times in the past 30 years; knowing that they are likely to be in the minority again someday, Democrats themselves are loath to give up the power to gum up the works.
But there is an answer here. It's not fewer filibusters; it's more of them. And by that I mean real filibusters something we haven't seen for quite a while in the Senate.
Anyone expecting the classic scene from Mr. Smith Goes to Washington, in which Jimmy Stewart talks until he collapses, should drop by the Senate Chamber during what passes for a filibuster these days. The place is usually all but empty. The only sound is the voice of a clerk droning through a slow roll call of the names of absent Senators. More often than not, even the filibusterer himself is nowhere to be seen.
It has been more than two decades since the last time we saw the majority actually make the minority put up or shut up on a filibuster. In 1988, while attempting to shut down a Republican filibuster of campaign finance reform legislation, then majority leader Robert Byrd even went so far as to invoke a power that hadn't been used since 1942: he dispatched the Senate sergeant-at-arms to arrest missing Senators and escort them to the floor. Oregon's Bob Packwood was carried onto the floor at 1:19 a.m., after a scuffle in which he attempted to jam his office door and ended up reinjuring a broken finger. Byrd didn't give up until a record-setting eighth cloture vote failed to end the debate.
That we don't see these kinds of episodes nowadays has more to do with convenience than anything else. As congressional scholar Norman Ornstein once told me, "You have a different Senate now. Frankly, they're soft. If they had the backbone and the discipline to do it, it would work."
To force a filibuster, the majority has to keep a quorum of 51 at the ready. That means telling its members: Sorry, guys, you won't be making it to that fundraiser tonight. And a real filibuster also uses up a lot of time, which can be a problem at the end of a session when there is a lot of must-pass legislation, like spending bills, needed to keep the government operating.
But early in the year which is where we are now forcing a real filibuster could be a useful exercise, one that makes a point far more effectively than all the whining we are hearing about Republican abuse of the rules. If what the majority is offering is a bill that the public really wants, there will be a price to pay for talking it to death. There will be a reason to actually try to work out the differences between the two sides. Even if the Democrats ultimately lose, the voters will at least understand what the fight was all about. And maybe, just maybe, the minority will think twice before they launch the next filibuster.
As retiring Senator Evan Bayh wrote in an Op-Ed in this past Sunday's New York Times, "Those who obstruct the Senate should pay a price in public notoriety and physical exhaustion. That would lead to a significant decline in frivolous filibusters." Sadly, such clarity of vision about the institution seems to come only to Senators when they are on their way out the door.