Antidote To The Filibuster: Make Them Do It For Real

Here's another sure sign we're in an era of change in Washington: People are taking the filibuster seriously again.

The Senate itself was created 220 years ago to resist and temper change, and it has evolved an arsenal it can deploy to that end. But no weapon has been more colorful -- or more effective -- than simply talking change to death.

Whenever there is a strong tide of political sentiment running, be it conservative or liberal, the party feeling pressured falls back on its last line of defense: the Senate filibuster. The current climate in Washington is no exception.

Needless to say, the party repairing to the ramparts these days is the GOP. In the past two election cycles, Republicans have lost the White House and majority control of both chambers of Congress. Their last chance to slow or stop the making of new laws -- lots of new laws -- is to threaten a filibuster in the Senate, forcing a three-fifths majority of 60 to cut off debate and proceed to a final vote.

Note the emphasis on the word "threaten" here. Contemporary filibusters are not actual but virtual. The resisting senators simply indicate an inclination to extend debate, and the signal is lost on no one. They do not even make this threat against the measure itself (a bill, a nomination, whatever). They make it against the all-important "motion to proceed" that precedes formal consideration.

This fine point of procedure allows a Senate rear guard to prevent a given measure from reaching the floor. The point may once have been to air out the issues. Today the filibuster may be entirely silent. Its intent is merely to wear down the sponsors until they withdraw the measure in frustration or Congress adjourns (whichever comes first).

Notified of a looming filibuster threat, the Senate majority leader files a petition for cloture, meaning a vote on cutting off debate. If the leader has 60 votes to support that motion, a time limit is set on debate and the measure itself eventually comes to the floor for formal consideration and a vote. At that point, the final vote holds no suspense. If you've got 60 votes for cloture, you've surely got a bare majority of 51 for passage.

So the real vote is the vote for cloture, whenever the threat of a filibuster is invoked.

In the old days, such threats were rare. Members understood that a filibuster meant holding the floor for hours at a time -- sometimes around the clock -- to prevent a vote. The idealization was Jimmy Stewart talking himself hoarse in Mr. Smith Goes to Washington, a 1939 movie about a fantasy character in a fantasy Washington. The reality was more like Strom Thurmond, battling a civil rights bill in 1957, dehydrating in the Senate gym so he could hold the floor for 20 hours without a potty break.

For most of our history, the rules of the filibuster required practitioners to perform the act in public. This meant reaping the appropriate degree of public opprobrium. But in the age of C-SPAN the indignities of the filibuster moved Senate leaders to take it offstage. It is now cloaked in procedural jargon and passed off as business as usual.

The bygone era of all-night speeches and members sleeping on cots in the hallways has been all but forgotten. And in that process, something of the risk of the filibuster as a tactic has been lost.

In the real world, it has always been understood that any filibuster was a power struggle in which the force of the majority could be neutralized by a determined minority. Senators reserved it for use on a single issue or two of paramount importance to their state. The classic example was the phalanx of Southern senators like Thurmond who lined up in the 1950s and 1960s to filibuster against civil rights for African-Americans in their home states.

Those battles in particular gave the "F"-word a bad connotation. So in the post-Watergate reform era of the mid-1970s, the Senate lowered the threshold for cloture from two-thirds (67) to three-fifths (60). This was a reform intended to weaken the filibuster as a weapon, but in the end it has had unintended consequences that in some ways made the filibuster more pervasive than ever.

That is because, in the years that followed, senators stopped relating to the filibuster as a nuclear weapon to be used only in extreme circumstances. Instead, the threat of a filibuster became a kind of personal sidearm, worn at all times and brandished at the slightest provocation.

Moreover, the controversy over the filibuster itself was muted. The practitioners of the filibuster were no longer required to perform the act in public and reap the appropriate degree of public scorn. That meant it could be used in comparative obscurity, with relative impunity. It was just another technique, another tradition. Making it virtual made it easier to defend it as virtuous.

So, what if the Senate were to rescind the "silent filibuster" and simply require those who wish to have "extended debate" to have it? Why not make them do it for real?

What the public would see, under the unblinking eye of C-SPAN, would be the true spectacle of a handful of senators defying the will of the majority.

What effect would that have had on the struggle over a stimulus package? What effect would it have on the next showdown, be it over health care or the seating of Al Franken as winner of the Senate race (and recount) in Minnesota?

The Senate GOP under leader Mitch McConnell of Kentucky has indicated it is willing to enforce the 60-vote threshold for virtually any issue that any of its members deem worthy. That could be quite a list, potentially including every important fiscal and nonfiscal piece of legislation this year and next.

That may be an enormously effective GOP firewall against an Obama-led makeover of the national economy (and the federal power structure that regulates it). It may also be a prescription for another GOP disaster in 2010 -- the kind of disastrous mispositioning that doomed the party to decades of minority status 75 years ago.

Conservatives in the 1930s always assumed the country was with them, outraged whenever Franklin D. Roosevelt overreached. But they had to keep ordering successive helpings of crow as their losses continued through four straight election cycles (from 1930 through 1936).

Conservatives are betting it will be different this time. And one reason they may be right is that their opposition to the will of the majority can be brought to bear effectively in threatened filibusters they never have to act out for real.

If they did, they might be far less willing to do it.