Why Can't Dems Run The Senate With 59 Votes?

President Obama met with Senate Democrats Wednesday to map strategy. But with cameras in the room, the working session quickly deteriorated into a series of individual senatorial commentaries in the guise of questions — bids for TV news time back in their home states.

What was to have been a meaningful exchange began to look like a typical Senate day on C-SPAN. And, no surprise, the first in line for the mike were the incumbents facing the iffiest re-election prospects this year.

With the world of work Senate Democrats still have to tackle this year, nothing seems more important to Majority Leader Harry Reid and his cohort than their campaigns. The priorities, privileges and political survival of the individual senator remain the principal focus of the United States Senate. Nothing competes with the needs of the senators themselves.

This is not just a matter of vanity; it goes to the basic problem that makes the Senate a dam in the governing stream. The primacy of the individual senator is what hobbles Congress on a regular basis. And that primacy's most effective tool is the threat of a filibuster.

The real filibuster was once the nuclear weapon of Senate procedure. Senators had the right, but regarded it as an extreme form of behavior (see Jimmy Stewart in Mr. Smith Goes to Washington). It was reserved for big issues that at least a substantial portion of the Senate regarded as existential.

Nowadays, the nuclear weapon has become a kind of sidearm. Every senator wears it on one hip, like a cowboy's six-gun in a Western saloon.

So what changed?

Going Nuclear

Let's step back a bit. From the Constitution forward, the Senate has been a highly privileged organ that made its own rules and tended to operate independently of the few it made. Custom and courtesy, member to member, have been the essence of the process.

That broke down in 1917, when isolationist senators filibustered a bill to arm merchant ships crossing the Atlantic in the months before the U.S. entered World War I. Incensed, President Woodrow Wilson demanded that the Senate find some way to limit debate. The Senate adopted Rule 22, providing for a cutoff of debate when two-thirds of the Senate agreed to it (the same vote needed to change the rules).

For half a century thereafter, the filibuster was primarily the last resort of Southern senators fighting bills they saw as hostile to their region, especially anti-segregation bills. In these times, the filibustering minority would talk round the clock, while members on both sides kept watch and slept on cots. But such dramas came to an end in 1964, when a months-long filibuster was broken by a coalition of Republicans and non-Southern Democrats to enact the landmark Civil Rights Act.

A decade later, the Senate mustered another two-thirds majority to change the rule itself, lowering the vote required for cloture from 67 to 60. It was meant to be a progressive reform but had unintended consequences.

Now Everyone Is Armed

When filibustering was nearly impossible to stop, its use for small matters was all but unthinkable. When it became easier to invoke cloture, the filibuster itself became more commonplace. In the mid-'80s, Sen. Al D'Amato (R-NY) held the floor for hours one night in defense of one military contractor with plants in his state.

Such petty filibusters were a way to get attention or to leverage a better deal from a committee chairman. If enough senators were willing to join in, even temporarily, party leaders might decide against bringing a particular bill to the floor.

It became standard operating procedure for majority leaders to seek cloture before taking up any bill of importance or any business involving controversy. If there were not 60 votes for cloture, consideration of that item would simply stop.

This evolved into the predicament of the Senate today. The mere threat of a filibuster is now as effective as a real one.

So Why Not Force A Filibuster?

Why won't Reid and other leaders force the minority to get out the cots and do it for real?

They consider the time to be lost; the loss of dignity, the ceding of control for weeks at a time the ultimate political risk. Which side will the public be on? Who will come out ahead after the ordeal is over? And even if the majority eventually breaks one filibuster, won't it have to go through it all again on the next big issue?

These hazards have weighed heavily on risk-averse majority leaders in both parties. Beyond these concerns, there is the sheer habit of the Senate and its leaders: obeisance to the needs of individual members. Given the uncertainties and ugliness of a endless filibuster, no one wants to go there.

But ultimately, the legislative history of the first two years of the Obama presidency will be determined not by the House, which has already passed the essentials of the Obama program, but by the Senate. And the Senate has done only the economic stimulus package, which it accomplished with Republican crossovers.

Once the Democrats picked up two more seats in mid-2009, they shifted to seeking 60 votes without any Republicans. That hardened the Republican bloc to perfection, leaving Reid at the mercy of each individual freelancer in his own ranks. The cult of the individual senator had a field day, and the deal-making that followed made the bill toxic to much of the public and unacceptable to the House.

The 60-vote strategy proved not only unproductive, but counterproductive. It proved to be a mirage. And with the loss of the Massachusetts Senate seat to Republican Scott Brown, it is now a memory.

That leaves the Democrats two choices: Convert at least one Republican (or at least one on each issue) or call the Republicans' bluff on the threat of a filibuster. Make them do it for real, and you will see where the public stands on the question of majority rule.



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