The filibuster must stop here

By Katrina vanden Heuvel
Wednesday, December 29, 2010

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, Senate Majority Leader 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 progressives acknowledge the progress made in the past two years, we must never forget the policies that lie on the Senate floor thanks to the filibuster. We got the Recovery and Reinvestment 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 yet decidedly mixed record of two years when Democrats held 58 to 60 Senate seats. When they have only 53 seats, starting next month, the record will undoubtedly be bleak.

That is, unless the outdated rules governing use of this anachronistic tool are reformed. The filibuster was never intended to be wielded as a weapon of obstruction. Abused via current methods - such as not requiring a senator to continuously hold the floor and debate while he or she is filibustering - it does not just check the power of the majority; it cripples it. It is the definition of minority tyranny, a concept as antithetical to democratic principles as any in the republic.

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

Misuse of the filibuster has been charged by both parties in recent years. Some of the Senate's most junior members have expressed frustration and, at times, outrage over filibuster use and rigging of the rules. Democratic Sens. Jeff Merkley (Ore.), Tom Udall (N.M.), Claire McCaskill (Mo.) and Michael Bennet (Colo.) have spent time in recent months drumming up support for reform not just of the filibuster but also 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 Senate rules, are averse to change. Other veterans have joined forces with the freshmen, however, including Sen. Tom Harkin (D-Iowa), who has said he is ready for "fireworks" on Jan. 5.

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, which has become a "completely constipated place," according to Sen. Udall.

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, revising the rules in response to abuse may 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.

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

If the filibuster is reformed next week, thanks to the efforts of this dedicated coalition and a group of freshman senators who refused to accept outdated rules, 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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