November 27, 2012 06:19 PM UTC

Want To Filibuster? Sure, But Keep It Real

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• by: Colorado Pols

Huffington Post:

Use of the filibuster to stall legislation — when the minority party refuses to end debate on a bill unless 60 senators vote to do so — has escalated in recent years, rising from a rarity to the norm. Senate Majority Leader Harry Reid (D-Nev.) has been signaling his readiness to curb the tactic, often noting that he has faced 385 filibusters during his leadership while Lyndon Johnson had to deal with only one when he ran the Senate.

A number of proposals are under consideration, including a bill sponsored by Sen. Jeff Merkley (D-Ore.) and others that would essentially require an old-fashioned “Mr. Smith Goes to Washington”-style filibuster: Minority opponents of a measure would actually have to take the floor and hold forth for hours, rather than simply signal their intent to obstruct.

Making such a rule change in the Senate would normally require a 67-vote majority. But when the Senate comes back into session in January, Democrats could use a set of procedural rules often called the “nuclear option” and pass the changes with a simple 51-vote majority.

Two years ago, a similar proposal for reforming the filibuster from Colorado Sens. Mark Udall and Michael Bennet was defeated. Under that proposal, like the one from Sen. Jeff Merkley described above, would not ban filibusters, but would require that Senators engaging in a filibuster to actually occupy the podium in the Senate–not merely threaten to do so.

The partisan posturing you’re seeing around this debate is no accident, as the Washington Post’s Greg Sargent writes:

The extent of GOP filibustering is unprecedented. This chart shows that cloture motions (a rough measure of filibustering) suddenly spiked during the Obama years. Yes, they also spiked in 2007-2008, but according to Congressional scholar Norman Ornstein, the vast majority of those filibusters were mounted by Republicans, presumably to block legislation designed to embarrass George W. Bush. (Indeed, the motions to end filibusters during that period were filed mostly by Dems.)

The nature of GOP filibustering is unprecedented. Ornstein says this is true in two ways: First, in the extensive blockading of what used to be considered routine Senate business. And second, much of the filibustering is part of a concerted party strategy. “You’re not just looking at filibusters done by rogue senators or factions, like southern Democrats in the 1950s,” says Ornstein. “It’s the first time we’ve had a wide range of filibustering by a whole party.”

Desire by Democrats to reform the filibuster, to break the logjam caused by a GOP minority determined to obstruct, is of course tempered by the knowledge that Democrats will themselves someday find themselves in the minority. When that happens, they will surely want minority rights preserved. With that said, there’s an objective case to be made that Senate Republicans have taken the filibuster to an extreme Democrats have never even considered; which has resulted in a serious breakdown in the ability of that chamber to function.

Since it’s politically not easy to defend the current filibuster practice in the Senate, which requires only the threat of a filibuster to stall legislation, Republicans are expected to fight the use of Senate procedure to pass filibuster reform without the usually required two-thirds in favor. Democrats objected when a Republican-controlled Senate considered this option, the story goes, so to employ it now would be hypocrisy. Talking about this battle over Senate procedure and rules is preferable to explaining why Republicans are unwilling to filibuster in the manner the public expects them to, by actually holding the floor and speaking.

Democrats will win this battle if they can make it about Republicans’ unwillingness to make simple and sensible changes to reduce gridlock in the Senate. The debate shouldn’t be about the “nuclear option,” but rather why it’s necessary. If Mitch McConnell is upset about rule changes made by simple majority, he should be made to explain why there aren’t 60 votes to pass them. There is no proposal we know of that would “end” the filibuster, and the compromise measure likely to be introduced in January is certain to fall well short of the hyperbole coming from the GOP. As we said, Democrats are mindful of their own future as they look at this.

Are we wrong? Is there a poll we missed that says gridlock is cool by voters now?