Filibuster reform at last?

Tuesday, December 28, 2010

As the lame-duck session drew to a close, progressives were reminded of the capacity of Congress to accomplish important things but also of what we are giving up as a new session begins. In the House, Democrats have lost their majority, and will be dealing with the possibility of John Boehner and Eric Cantor wielding their new power to do real harm and undo real progress. In the Senate, Democrats will maintain their majority, though that may be little consolation. With a loss of five Democratic Senate seats, the caucus finds itself seven votes - and many miles away - from the ability to stop the filibuster.

Considering the damage the filibuster has done over the past two years, our new circumstances are, indeed, distressing. Back when Lyndon Johnson was majority leader in the Senate, he needed to file for cloture to end a filibuster only once. During President Obama's first two years, Harry Reid filed for cloture 84 times. To put that in perspective, the filibuster was used more in 2009 than in the 1950s and 1960s combined.

Even as we acknowledge the progress we've made these past two years, we must never forget the policies that lie dead on the Senate floor at the hands of the filibuster. We got a Recovery Act, but a filibuster prevented it from being sufficiently large. We got health-care reform, but a filibuster killed the public option. We got Wall Street reform, but a filibuster killed provisions to break up the big banks. We got an extension of unemployment benefits, a payroll tax cut and more, but the threat of the filibuster killed our chances to do that without giving handouts to the wealthy.

That is an impressive, albeit decidedly mixed record of two years when Democrats held 58 to 60 Senate seats. Undoubtedly, in the years when they have only 53 seats, the record will be bleak.

That is, unless we reform this outdated and anachronistic tool. The filibuster was never intended to be wielded as a weapon of obstruction. Its current abuse was not contemplated by those who created it. Used this way, the filibuster does not just check the power of the majority; it cripples it. It is the very definition of minority tyranny, a concept as antithetical to democratic principles as any in the republic.

There is only one day in the year when the Senate can make changes to its rules without the fear of that process, itself, being filibustered - and that day is fast approaching. Jan. 5, 2011, will be the first day of the 112th Congress and, as such, the only day where a simple majority can vote to change the Senate rules (on all other days, 67 votes would be required).

Some of the most junior members of the U.S. Senate have expressed frustration and, at times, outrage (rightly so) over the use of the filibuster and the rigging of the rules. Democratic Sens. Jeff Merkley (Ore.), Tom Udall (N.M.), Claire McCaskill (Mo.), and Michael Bennet (Colo.) have spent much of their time drumming up support for reform, not just of the filibuster itself but of the procedures that allow it to eat up valuable floor time. They have faced pushback from more veteran senators, such as Chris Dodd (D-Conn.), who, having become accustomed to the Senate rules, are averse to change. Other veterans, however, including Sen. Tom Harkin (D-Iowa), joined forces with the freshmen.

The options they offer are simple and unquestionably reasonable. Sens. Udall and Merkley have put forward what has become known as the "constitutional option," a basic two-step process in which 51 senators first agree to adopt new rules, and then 51 senators agree on a reform package. Their package probably would not end the filibuster altogether. But it wouldn't need to. Procedural changes - such as preventing a filibuster on the motion to proceed, shortening the amount of debate allowed between cloture motions and ending the unconscionable practice of anonymous holds - have the potential to remake the Senate.

These reforms would prevent a single senator from wielding the filibuster against the entire body and would allow the majority to challenge the minority without wasting precious floor time. Perhaps most important, the act of revising the rules in response to abuse may in itself serve as a check on the minority, a warning that the overreach of the type the GOP perfected during the 111th Congress will not be tolerated in the future.

Until recently, the biggest challenge to reform appeared to be getting a majority to agree to take action on Jan. 5. But now, thanks in large part to a grassroots movement, the chances for reforming the filibuster may be the best in a generation. For the past several months a coalition of labor unions and progressive organizations have pressured Congress to take action, launching a Web site called Fix the Senate Now and drumming up support among progressives. Those efforts helped reformers in the Senate gain momentum, culminating in a letter to Harry Reid that called for reform and that was signed - amazingly - by every returning Democratic senator.

We may be about to witness history as a result of the efforts of this dedicated coalition and a group of freshman senators who refused to accept the outdated rules of the establishment. Democracy may be restored to a long-broken institution, with the paralysis of obstruction becoming a thing of the past.

Katrina vanden Heuvel is editor and publisher of the Nation and writes a weekly online column for The Post.

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