Defending the Filibuster

Frustrated by the fact that Republicans were able to use the filibuster to block or temper numerous "progressive" power grabs during the first two years of the Obama administration, Senate Democrats, led by Tom Udall (NM), seem to be making a determined play to modify the filibuster. Meanwhile, Harry Reid is in negotiations with Republican Senate leadership about some kind of compromise or deal about the filibuster. Brian Beutler at TPM has done some excellent reporting on this, though there is still much uncertainty about the actual movements. In 1975, Democrats changed the filibuster rules by using the controversial strategy of invoking the "Constitutional option," one Udall and friends seem inclined to use when the Senate reconvenes later this week. This "option" would find that the Senate could modify its rules (including the filibuster) by a bare majority vote on the first day of the Congress. Normally, it takes 2/3 of the Senate to change the rules. Ironically, the reform of 1975, by requiring a 3/5 vote of the whole Senate to override a filibuster, actually made the filibuster stronger and helped it become more common.

Filibuster reformers have a few different options. Perhaps one of the more striking ones is requiring 41 votes to sustain a filibuster. As Beutler explains,

Here's how they propose to change that. Under this plan, if 41 or more senators voted against the cloture motion to end debate, "then you would go into a period of extended debate, and dilatory motions would not be allowed," Udall explained.

As long as a member is on hand to keep talking, that period of debate continues. But if they lapse, it's over -- cloture is invoked and, eventually, the issue gets an up-or-down majority vote.

This change would offer a radical shift in the burden of the filibuster, transferring it from the majority to the minority. There is something to be said for this reversal, but making the filibuster threshold 41 votes (instead of, say, one-third of the senators voting) would be a great weakening of the power of the minority.

Furthermore, Udall's plan may provide a further weakening of the filibuster in that it seems to suggest that cloture never needs to be successfully invoked for a majority to override the minority; it only needs to wait that minority out. So 51 votes (or even fewer) could have greater power in the Senate.

Udall has a number of proposals floating around, but all have the same goal: weakening the power of the minority. Democrats have a smaller majority in 2011 than they did in 1975, but the caucus is also much more under the thrall of a "progressive" ideology as well. One of the key tenets of many self-styled "progressives" from Woodrow Wilson to Barack Obama is the importance of centralizing power. A bicameral legislature helps check this centralization, and the filibuster, by stressing the need for bipartisanship, further exasperates "progressives" eager to have government by monolithic ideology.

Some Republicans may think that, with the GOP controlling the House, the party would be insulated from any diminution of the filibuster---and that 2012 will bring Republicans to power in the Senate and the White House, so a weakening of the filibuster now would set the stage for a conservative empowerment shortly in the future.

This would be an incredibly short-sighted assumption. According to the conventional Washington narrative, Barack Obama went from being politically untouchable to being a political Untouchable in under two years. There's no reason to think that that process can't be reversed. It would be a foolish thing indeed to underestimate Obama's political strength.

There are deeper structural issues at play as well. Republicans and Democrats will both have their time in the minority. Partisan alienation is never in short supply in our republic, and the traditions of the Senate that limit the power of smaller majorities help build a bipartisan consensus. Checks on small majorities (and that's what the filibuster is, in part) incentivize cooperation and help keep the federal government from dissolving into wild swings as one temporary majority flips into another.

In the days ahead, a few questions remain. Perhaps the most prominent of them: Are the Democrats really serious about "reforming" the filibuster? True, Senate Democrats have almost unanimously signed off on a letter asking for some procedural changes in the next Congress, but there's a lot of vagueness in that desire for change. While "progressive" netrooters salivate over ending the filibuster, numerous Senate Democrats approach this issue more as practical politicians and less as ideologues. Senators know that the filibuster can be a valuable tool when they are in the minority, and have an interest in keeping that tool. Democrats might be able to herald as a great victory some weakening of the (sometimes abused) power of anonymous holds. They might put on a good show of Senatorial kabuki, rile up activists, and leave things pretty much the way they are.

Or they might decide to make a real move against the filibuster. Republicans should fight any radical assaults upon the power of the minority. Under the current Democratic gameplan for attacking the filibuster, there are a lot of delays that Republicans can use to rally popular support in defense of the rights of the minority and the spirit of compromise. The "opening day" could presumably take "weeks" as Republicans demand debate on rules changes.

Moreover, this debate about Senate rules could put a hold of the Senate's business. As a memo from one of Beutler's sources states,

Reform Senators would need to object to any attempt to transact substantive business or seek a unanimous consent request to that effect. The objective is to ensure that the reformers do not waive any rights to amend Senate rules on opening day by majority vote.

The GOP could use this tactic to its advantage. After all, the Obama administration does have a number of pressing issues, especially the raising of the debt ceiling. How much patience with the public have with a seemingly unchastened Democratic party attempting to arrogate more power to itself instead of doing the nation's business?

Having experienced a substantial setback in 2010, "progressives" are trying to reach for more power and undo checks on the power of future "progressive" forces. It remains to be seen whether Republicans and moderate-minded Democrats will allow them to succeed.