photo credit: CFAPAF

On Thursday night  U.S. Senate Majority Leader Harry Reid was forced to stall a vote on a $410 billion spending package needed to fund the federal government through to September, because he didn’t have enough votes for it in the Senate. It will now be delayed till later this week, to give enough time for Republicans to have their way with it. The reason for the delay? Reid did not have sixty votes. Sixty votes is, of course, the crucial number for any legislation in the Senate, because it prevents a Republican “filibustering” a bill and thus obstructing its passage . As such, it’s a number that could prove the downfall for Obama’s entire legislative agenda.

But it needn’t be like this.

Here’s the situation: Democrats currently have 58 seats in the Senate. 60 votes is needed to prevent any single Republican from “filibustering” any bill.  The Democrats could have  59 seats, – leaving only one Republican Senator to be persuaded on any bill – if Minnesota Senator Al Franken was seated. Why isn’t Franken being seated? Because the Republican he defeated in November’s election, Norm Coleman, is refusing to accept the results of January’s recount and is intent on exhausting all his legal appeals. As the Politico notes in a new article “Dems need Franken more than ever”, this makes things very difficult for Harry Reid. Without Franken, it is that much harder to get to 60 votes on anything and thus that much harder to pass President Obama’s vast legislative program.

Except it shouldn’t be like this. Obama’s entire agenda – health care reform, cap and trade, his upcoming enormous budget – should not be under threat because Democrats can’t quite get to 60 votes without serious watering down of any legislation. Indeed, what the Politico article won’t tell you and what you won’t find in the traditional media is the real cause of this problem: the crazy modern day conception of the filibuster.

I first wrote about this back in January in my post Death to the filibuster? which is worth checking out for an extended argument on the background and merits of this archaic Senate tool. Essentially, though, my concluding argument was this: though the filibuster is a useful tool for the minority and thus a historic bulwark against the tyranny of the majority, in its modern day usage it has become an absurd mockery of its original conception. The way it is used today means that, rather than making a Republican who wants to filibuster a bill actually filibuster it, there is instead simply an assumed requirement of 60 votes for any major legislation. This saves Republicans from actually having to do anything while  making a mockery of the supposed threshold of a simple majority to pass Senate legislation. Why is this so crucial? Because by actually making Republicans filibuster – making them stand up on the floor of the Senate and talk for hours, in other words – then they would have to face the judgement of the public who, as current polls indicate, rather like President Obama’s agenda, thank you very much. The threat of such an unfavourable public spotlight would therefore put off Republicans from filibustering most of the time, or at least encourage moderate republicans to vote to end a filibuster by one of their more extreme contemporaries.

But forcing Republicans to – gasp! – actually filibuster wouldn’t just solve the problem of GOP obstructionism in the Senate, it would also solve the danger of  self-proclaimed “moderate” Senate Democrats trying to throw their weight around by working with their colleagues in the minority to water down Obama’s legislation . We saw this during the battle over the Stimulus package: centrist Democrat Senators like Ben Nelson working with New England Republican Susan Collins to arbitrarily strip provisions from the Economic Recovery Bill.  The omens for forthcoming legislation, however, are worse as it appears that Indiana Senator Evan Bayh, an egotist extraordinaire,  is attempting to get together a sizeable group of fellow moderate Democrats to act as a sort of pompous levee against the tide of Obama’s ambitions. You can get an idea of the number we’re talking about here.

So would making Republicans filibuster stem the flow of obstructionist moderate democrats? Yes it would, because though they are happy to take the limelight for spearheading compromise talks over major legislation – expecting the praise they consistently get from a media that dotes on bipartisanship – I doubt whether they would enjoy being put in the position of enabling a Republican who, by filibustering Obama’s legislation, would be going against the desires of almost 70% of the population. In other words, apply a little pressure and you’ll get them voting to end any filibuster quicker than you can say “my bipartisan reputation is at stake”. Perhaps I’m wrong on this. But I’d love the chance to find out…

To repeat: make Senators who want to filibuster… filibuster! It’s a simple solution that, in one fell stroke, would alleviate the current obstacles to Obama’s agenda. But Harry Reid won’t do it, because he and the rest of the Democrats are terrified of Republicans. So, thanks to their political cowardice,  expect more delays to bills. Expect more compromises. And, unless Franken is seated soon (and even if he is seated soon) expect Obama’s agenda to not make it into law fully entact. Expect healthcare reform to be a little less effective. Expect cap and trade to be a little less stringent. Expect the budget to be a little less ambitious. And expect the Employee Free Choice Act (you know, the bill that stops employers arbitrarily firing union members) to never even make it out the gate.

Like most acts of political cowardice, it’s the people that get hurt, not the politicians.

The question of abolishing the filibuster has never been more pressing than at the present, where America is faced with an absurd, almost Daliesque situation: A Democratic Congress and White House allowing (largely) Republican Senators to strip jobs from the legislation that is America’s best hope of stemming the rise in unemployment caused by the biggest crisis since the Great Depression.

First, a quick primer. The filibuster is an archaic Senate rule that allows a lone senator to defy the majority by endlessly debating a piece of legislation, thus preventing a vote on it. In order to end a filibuster, there must be a “cloture vote” – three fifths of the senate, or 60 senators, is required for cloture. It has a rather accidental history (for a brief breakdown, read Matthew Yglesias’s article on it)  and most of its life it has been used sparingly; yet in recent times it has taken on the form of a oft-used partisan tool that arguably obstructs Congress from getting much done.  In the 1960s, no Congress had more than seven filibusters. The 110th Congress, which just ended, featured 137.

Obviously there are serious, albeit transient, political considerations to be taken into account when talking about abolishing the filibuster. Back in 2005 the Republican majority Senate, faced with Democrats willing to filibuster the President’s judicial nominees, mulled over the idea of bypassing the rule – the so called “nuclear option” . This, it was agreed, would have been very “bad” for Democrats. Now, faced with obstructionist Republicans that show no signs of wanting to work with Obama, nuking the filibuster suddenly seems like it would be “good” for Democrats. But an argument based on the current political status quo should never be allowed to make it out the gate, at least not if we are concerned with rules that are based on timeless considerations.

The most effective argument, then, for eliminating the filibuster is that it is anti-majoritarian and against the will of the electorate. By allowing a tiny minority to halt the plans of the majority it is an affront to the democratic rights of the populace, who elected their representatives to get stuff done. Of course, their representatives might then go on to do some pretty bad stuff, but if so then this is the cost of elected democracy and would,  hopefully, be recognised by the electorate who will then vote for someone else when they get their next go – someone who might well go on to do some pretty cool stuff if given half a chance. This is what Ezra Klein means when he says:

A world in which George W. Bush could possibly have passed Social Security privatization because he won the election is preferable to a world in which global warming cannot be addressed and health care cannot be reformed because Senate Rule 22 says so.

This is a pretty powerful argument, especially when you combine it with the observation that the filibuster is no longer – if it ever was – the last stand for the sincere crusader but instead a cynical prop in political warfare. The best evidence of this, apart from the massively increased use of the filibuster in the last decade, is the fact that it now operates as a threat, rather than an actual practice. The threat of a filibuster is often enough to turn the normal majority requirement for passing Senate bills into a quest for 60 votes. Indeed, given the tone of Washington these last few years, it is fair to say that the 50 vote majority requirement for passing legislation has now morphed into a 60 vote hurdle.

But is abolishing the filibuster really a sensible option? The idea of the minority making a stand against the majority is surely at the very heart of the Senate, which after all was conceived in terms of its structure as a bulwark against the populist House of Representatives. This is nowhere more obvious than in its makeup, which is a living embodiment of the minority over the majority ethic: whereas the House elects its representatives from each state based on that state’s population, the Senate takes two senators from each state regardless of the amount of people who live there. More pressingly, there is something timeless and essential about the ability, if only temporarily, for the single minority to make a stand against the merciless march of the majority. Governments, even those elected in the most transparent of ways, can still go on to make some horrendous mistakes. Even if their attempt is unsuccessful, it is still valuable to have a way for a senator to speak up about the mistake in an unequivocal and vocal fashion. And it must be noted that 60 votes to end the filibuster is hardly an insurmountable obstacle; at the very least it is a huge improvement over the 67 (two thirds majority) required before the reforms of 1975.

The question becomes, therefore, whether there is a way to reform the filibuster so as to keep a potentially vital check on the majority while at the same time tackling its anti-majoritarian, anti-democratic connotations and its cynical use as a standard political weapon.

It’s not at all certain that such a thing is possible. But I’m willing to take a risk on one, blindingly obvious requirement: that any senator who wishes to filibuster… is actually made to filibuster. This would instantly solve both the problems I mentioned above. Tackling first the problem of its cynical, repetitive use, if Senators actually had to go through the motions of  a proper, public, filibuster, then we would see its return to very much a tool of last resort. After all, a proper filibuster – one where you spend hours in the Senate, in front of the C-Span cameras, as the media breathlessly covers hour by hour this made-for-the-news-cycle event – is not a thing to be taken lightly. It could end up coming back to haunt you in your opponent’s campaign commercials. If done properly, it could either be the beginning or end of your career. If done against a popular bill created by a popular president, it might well be the end. If you want to get an image in your head of the kind of thing I’m talking about, check out the  West Wing episode “The Stackhouse Filibuster” where an elderly but stubborn senator takes to the Senate floor for a physically demanding marathon filibuster, eventually earning the respect of the initially irate Bartlett administration.

Whether this requirement would have changed the outcome of the current situation re. the Senate Stimulus Bill is up for debate. However, I find it hard to imagine that, if a conservative Republican was forced to actually filibuster against a popular bill aimed at saving our economy, then moderate Republicans would refuse to vote to end the filibuster, given the risk that would come with associating themselves with such a (presumably) unpopular move.  In any case, as I said earlier, we are talking long term principles here not transient political concerns.

Moving on to the second problem – the anti-democratic, anti-majoritarian nature of the filibuster – I would argue that forcing a senator to actually properly and publicly filibuster resolves this conflict with democratic principles. An actual filibuster creates a public debate. And public feeling is likely to be decisive. If the senator can convince the public that his cause is right then his filibuster might achieve its goal, but if the public takes umbrage to his obstructionism then the Senate would no doubt take note and find enough votes for cloture. This kind of substantive dialogue would actually be a boon to democracy, not a threat to it. Democracy and the voice of the majority work in different ways. It is not just the ability to vote for officials that measures a country’s democracy, it is the quality of the debate that ensues after their election and the ability of any elected official to participate in it. After all, the hypothetical filibusterer is an elected representative of the United States Senate; he’s hardly a tyrannous villain come to pull the voter’s rug out from under them.

Of course, I could be wrong. Maybe my suggestion would do nothing to solve the problems inherent in the filibuster, which are very real. Maybe the only option is to jettison this strange rule which has somehow side-stepped into Washington mythology.  But the anti-realpolitik romantic within me takes heart from the idea of maintaining a means by which the principled minority can make a last stand against the might of the majority. In this case, as is often the way, reform is better than outright abolition. The filibuster must die… Long live the filibuster