Harry Reid, the Senate Democratic leader, called an urgent meeting last week with leaders of civil rights, civil liberties, environmental and women's groups. His message: The Senate faces a nuclear winter that could engulf them.
What emerged at that meeting was an order of battle that could mark American politics for years. Reid told the participants that he had learned from friendly Republican senators that Bill Frist, the majority leader, intended to push forward with what has come to be known as the "nuclear option," a fiddling with Senate rules that would block filibusters of judicial nominees.
And Reid warned the groups that the Republican effort to curb the rights of the Senate minority would not stop with judges. If Frist won on judges, Reid predicted, Republicans would be emboldened to roll other legislation through on narrow majority votes.
The battle over the filibuster seems like an insider's game. In fact it is a historic fight over the structure of U.S. government that could affect almost every issue in the public realm.
The details are clear enough: Democrats filibustered 10 of President Bush's first-term judicial nominees while confirming 204 others.
Under current filibuster rules, it takes 60 votes to shut off Senate debate on most subjects. That means that if the Senate's 44 Democrats stay united, they can block Bush's appointees. Republicans say it should not take 60 votes to confirm a judge.
Under the nuclear option, Republicans would use a simple majority to amend Senate Rule 22, the filibuster provision, even though the rule itself explicitly requires a two-thirds vote for any filibuster changes. They would do this by having Vice President Cheney, in his role as president of the Senate, uphold a "point of order" that would have the effect of ending filibusters on judges. And it takes only a majority to uphold a point of order.
If this sounds convoluted, that's because it is a blatant effort to twist the rules and -- this ought to bother conservatives -- ignore the traditions of the Senate.
Reid's argument to the liberal groups is important because it raises the stakes. (Reid wouldn't confirm the substance of the private meeting, though he did not dispute the account offered by other participants.) On the narrow issue of judicial nominations, Republicans might muster a bare majority to overturn the filibuster. But there is genuine worry across the usual political divides that the precedent set on this one issue would be disastrous for minority rights on all others.
Conservatives say that liberals are a strange bunch to be defending the filibuster -- and the conservatives have a point. Liberals fought the filibuster when it was used by the Senate's Southern segregationist minority to stall civil rights bills. I'll acknowledge that when Republicans used the filibuster to obstruct health care reform and other pieces of progressive legislation in the first years of President Bill Clinton's term, I was tempted to support changes in the filibuster rules.
But conservatives who support the nuclear option are utterly unwilling to acknowledge their own convenient change of heart. They defended the filibuster as long as they were in the minority, but would cast it aside now that they have grabbed the presidency and narrow majorities in both houses. The liberals, moreover, never tried to twist the rules to get rid of the filibuster, as the conservatives are doing.
And if the principle at stake is "majority rule," consider that the Senate is, by its very nature, an affront to majoritarian principles. The 52 senators from the nation's smallest states could command a Senate majority even though they represent only 18 percent of the American population.
According to the Census Bureau's July 2004 population estimates, the 44 Democratic senators represent 148,026,027 people; the 55 Republican senators 144,765,157. Vermont's Jim Jeffords, an independent who usually votes with the Democrats, represents 310,697. (In these calculations, I evenly divided the population of states with split Senate delegations.) What does majority rule really mean in this context? If the Republicans pushing against the filibuster love majority rule so much, they should propose getting rid of the Senate altogether. But doing so would mean acknowledging what's really going on here: regime change disguised as a narrow rules fight. We could choose to institute a British-style parliamentary system in which majorities get almost everything they want. But advocates of such a radical departure should be honest enough to propose amending the Constitution first.