The filibuster has gone too far

One of the most perplexing things about contemporary Washington is that Democrats simultaneously hold the largest majority any party has had in the Senate in decades and are utterly unable to move forward with important legislation. The key to this paradox is the Senate rule that allows for the filibuster -- unlimited debate on a motion that can only be stopped by a vote of three-fifths of the chamber, or 60 senators. So the reason nothing much is getting done in Washington is that filibusters are going on all the time, right?

Not exactly. There have been no marathon debates in the Senate about health care or the stimulus bill. Senators aren't sleeping on cots in the chamber as aides ferry coffee to some lone Republican passionately making his case that the president wants to socialize medicine. The way Senate rules currently work, the minority party merely has to announce its intent to filibuster if it wants to stop a piece of legislation. Senate Majority Leader Harry Reid could force the Republicans to actually go through with it, but the way the rules work, the filibuster actually puts the onus on the majority, not the minority, to keep the debate going. A lone dissenter can object to a motion to end debate by universal consent, but if the majority fails to keep a quorum in the chamber at any given time, the Senate can be forced to adjourn.


The filibuster should be an extraordinary tool to prevent the majority from trampling the views of the minority, but the way the Senate's rules are now, it has become a routine part of business. There is no disincentive for the minority party to use the tactic, and so it has. Although the threat of the filibuster has been used extensively by Republicans to block the current Democratic majority, Democrats frequently invoked the tactic during the Bush administration, and overall, the number of filibusters has increased steadily since the current rules went into effect in the 1970s, regardless of which party was in power.

Sen. Evan Bayh of Indiana, the Democrat who announced last week that he would not seek re-election because of his frustration with partisanship in Washington, suggested in a New York Times op-ed on Sunday that the rules need to be reformed. He suggested limiting the number of filibusters on any piece of legislation to one (unlike the current rules that allow filibusters on each procedural step along the way); reducing the number of votes needed to cut off debate to 55; and for a filibuster to require a petition signed by 35 senators indicating their willingness to actually debate the issue indefinitely. "Those who obstruct the Senate should pay a price in public notoriety and physical exhaustion," Senator Bayh wrote.


Sens. Tom Harkin and Jeanne Shaheen, Democrats of Iowa and New Hampshire, respectively, have their own proposal, which would effectively allow a filibuster to continue for up to six days before it could be shut down with a simple majority vote.

The problem is, any of these proposals would require a change to the Senate rules, and it takes 67 votes to do that.

There are a couple of ways around the problem. A legislative technique called "reconciliation" allows straight up-or-down votes on matters related to the budget, but it's unclear how far that could be stretched on a matter like health care reform. Another way out would be to get the presiding officer of the Senate -- Vice President Joe Biden -- to declare the requirement of a supermajority to rewrite Senate rules to be unconstitutional. (A Supreme Court ruling from 1892 would give him some cover.) Then, after some parliamentary maneuvering, Democrats could change the filibuster rules by a simple majority vote.

As clear as it is that the filibuster has gotten out of hand, using that tactic to reform it would probably be a bad idea. Americans may not like the idea of the filibuster, but they like changing the rules in the middle of the game even less.

So what is Senator Reid to do? The only way to fight the routinization of the filibuster may be to engage in one. Take any one of the issues Republicans have vowed to fight to the death and make them actually do it. If that means Democrats are the ones who would have to take to the cots and talk all night, so be it. That would show some backbone and conviction -- not to mention an eagerness to debate the details of their proposals in public. That's something Americans would respond to.