We all remember the famous filibuster scene at the climax of Frank Capra's Mr. Smith Goes to Washington, with Jimmy Stewart finally collapsing at the end of a marathon session in which he (as always) Stands Up For What's Right.
It's a somewhat romantic view of the filibuster, since in reality it was used historically mostly as a means of blocking progressive legislation such as anti-lynching and civil-rights bills, and its most famous practitioners were bigots like Theodore Bilbo and Strom Thurmond. Nonetheless, it has been a useful tool for progressives, too, as it was occasionally useful for Democrats in the darkest days of the Bush Years as a means of slowing down the right-wing wrecking ball.
But in the old days, it was a rarely used tool, mainly because it required senators to actually do the Jimmy Stewart thing -- devote themselves to maintaining a running speech for the required time period, as well as to maintain enough colleagues in the chamber to sustain it.
That practice gradually subsided with Senate rules reforms in the 1970s, though, so now all you have to do to filibuster is signify your intent to filibuster: check a box and it's a fait accompli. Here's the result:
What has occurred, in point of fact, is that a determined group of Republicans has altered, through the adoption of purely obstructionist tactics that abuse the rules of the Senate, its operation in a way that clearly alters its functioning as the Founding Fathers intended the Senate to operate: that is, as a deliberative body in which the majority -- not a supermajority -- rules.
Functionally speaking, a supermajority is now required for anything to happen in the Senate. (That, incidentally, is why you saw the dropoff in cloture votes in 2010: filibuster "holds" were placed on nearly every single bill that was introduced, gumming up the works so profoundly that only a tiny handful were even able to proceed to a cloture vote.)
Interestingly enough, post-election polling of the people who voted Tuesday found that a large majority of Americans agree that something needs to change:
Exclusive results of of a new poll conducted for the Progressive Change Campaign Committee by venerable Democratic pollster PPP show 64% of voters contacted Tuesday and Wednesday said it was time to get rid of the legislative blocking maneuver used so often by Republicans since 2009. Just 23% said they'd like to preserve the practice, which President Obama has often decried and some Democrats have moved to abandon with little success.
The widespread opposition to the filibuster crosses party lines, the survey showed. Among Democrats, who saw much of their legislative agenda tied up in the Senate by Republican filibusters this year, 77% called for an end to the practice of effectively requiring a 60-vote majority to pass bills. Fifty-seven percent of Republican respondents said they opposed the filibuster, as did 61% of independents.
The beauty of it is: If Democrats act decisively and boldly, they can enact these changes with only 51 senators. But it has to happen on the first day of business in the Senate.
And so what the Constitutional Option is about is doing rules reform in the Senate at the beginning of a Congress and the crucial thing is that at the beginning of Congress you can set rules with 51 Senators. You can end the debate and you can adopt new rules. Now is the time for rules reform.
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I spent awhile on the phone yesterday with Mike Zamore, Sen. Jeff Merkley's chief of staff, to sound out whether there was any likelihood of getting reform done in January -- and what it would look like. Here's what he told me:
Zamore: The goal here is not to simply allow a majority to run over the minority and to reduce the roadblocks. The goal is to restore a measure of deliberation and get back to the essence of what those rules were intended to do.
So the basic premise is yes, let's make it harder to filibuster, to put the burden on those who want to obstruct rather than on the majority. And let's raise the stakes of filibustering, so that the decision is not undertaken lightly. You know, you've got to put some sweat equity into if you're going to hold up the will of the majority.
There's another piece to it. We should also be making it easier for those senators -- or for all senators -- to get their ideas to the floor, and if we're going to be raising the stakes in filibustering, then we also ought to be giving more opportunities to have ideas kicked around on the floor of the Senate before a bill comes to a vote.
So those two pieces kind of go hand in hand.
We're still trying to hash it out, but the basic concept would be that there would be some kind of default rules for deliberation that, in the absence of some other negotiated terms for bringing up a bill, would govern, and that those would allow alternating amendments between Democrats and Republicans and some fixed amount of debate and a chance to get those things voted on. So that would be one piece. And the other piece would be that, in exchange, filibustering would require some greater level of active engagement on the part of those who want to filibuster.
There's lots of discussion out there about various ways to make a filibuster look like Mr. Smith Goes to Washington. And we're exploring those possibilities, and figuring out a way to make it so that, if you want to block the majority from acting, you've got to be down on the floor and making the case. You can't just check a box and walk away.
In the end, a Merkley or Udall rules reform plan would look something like this: The filibuster is not eliminated, but rather the rules will actually force anyone filing one to debate, and it would require a specific number -- say, 10 or 12 senators -- to back it up by remaining on the floor for the entire length of the filibuster to sustain it.
It would be, in essence, the return of the Senate not just to Mr. Smith Goes to Washington, but to actual majority rule and not the now-defacto rule by supermajority. These kinds of measures would end the abuse while still retaining the filibuster as a tool to block the most extreme anti-popular measures, such as abolishing Social Security or repealing health-care reform.
Ezra Klein, who has been arguing for this change for a long time, explained last spring that the change came about through a combination of the loosening of rules and the sudden development of a minority absolutely hellbent on total obstruction by any means necessary:
In 1975 the Congress lowered the threshold once again, to three fifths of Congress, or 60 votes.
In theory, the filibuster should have become less common as it became easier to break. Unfortunately for the theory, between 2007 and 2010 the Senate had to call 214 cloture votes to break filibusters. That's more than had to be called between 1919 and 1976. And remember, 2010 is only three months old.
That's true, in part, because the minority party has started forcing more cloture votes even when it knows it'll lose. The goal is to slow the Senate to a crawl. After you call for cloture, you need to wait two days to take the vote. After you take the vote, there's 30 hours of post-cloture debate. And you can do this on the motion to debate, on amendments, on the vote on the bill itself … on everything, really. A single, committed crank (cough, Jim Bunning) can waste weeks forcing the majority to break his filibusters.
Of course, there will be much wailing and gnashing of teeth about this from the Fox News contingent. But the package that's being proposed actually has a great deal to offer both sides of the aisles; no doubt Republicans can readily see how opening up the rules to permit the minority now to bring its ideas to the floor more readily would work to their advantage in the immediate future.
More to the point, it would make the Senate operate the way it was intended in the Constitution. (The filibuster is not in the Constitution, by the way; as Austin Frakt explains, it exists more as an accident of the history of Senate rules.)
And aren't all these newly elected arch-conservatives devoted to the Constitution?