Filibuster Follies

 

Posted 01/06/2011 07:02 PM ET

Leadership: Waking up to a thinner majority, the Senate majority leader suddenly finds the filibuster a threat to democracy. So he decides that the first legislative day will be the day the Senate stood still.

Only in the Bible and Harry Reid's Senate can a day last more than 24 hours. As we predicted a week ago, the slightly less powerful majority leader, on the first legislative day in the 112th Congress, executed plans to make that "day" last until Jan. 25 so he can stage a legislative coup and neuter the filibuster rule that protects the right of the majority.

Senate rules changes can occur with a simple majority on the first legislative day of a new Congress. On Wednesday, Democrats used an old procedural rule and simply did not declare the first legislative day to be over. It will last through Jan. 24 and a two-week Senate recess. Time is needed to figure out the details of changing filibuster rules to continue pushing the Democratic agenda.

Claiming the GOP has used the filibuster to shut down vital legislation repeatedly, Democrats want to allow only 51 votes to shut off debate and proceed to a vote. Republicans counter that the filibuster has become increasingly necessary since Reid usually refuses to let Republican amendments fix bad bills.

In 2005, when Senate Republicans ruled the roost, Reid was a valiant defender of the filibuster. "Some in this chamber want to throw out 214 years of Senate history in the quest for absolute power," he said then. "They think they're wiser than our Founding Fathers. I doubt that's true."

Suddenly Harry Reid thinks he's wiser than the Founders who designed the Senate as a brake on the passions that rule the House of Representatives, where two-year terms and frequent turnover often don't lend themselves to thoughtful deliberation.

The Democrats' move "is not unconstitutional, but it is unprecedented and unwise," says Martin Gold, a former GOP Senate counsel and expert on Senate procedures. He notes that since the Senate is considered a "continuing body," where some terms continue from one Congress to the next, "the Senate rules have never changed from one Congress to the next."

In 2005, Gold notes, the threatened Republican use of the "nuclear option" was tailored to the specific issue of judicial filibusters. The Democrats' move would affect all filibusters and change the Senate from what was once rightly called the world's greatest deliberative body to a smaller version of the House, where for all practical purposes the minority has no rights.

As Vice President Joe Biden might say, this is a big deal. Ending the filibuster as we know it would turn the Congress into a version of a European Parliament, where the majority rules and the minority might as well take a long lunch.

As Minority Leader Mitch McConnell noted, Sen. Tom Harkin, D-Iowa, in January 1995, just two months after the GOP won a majority in the House for the first time in 40 years, submitted a proposal to end filibusters with 51 votes. Every Republican senator voted against it, as well as Sen. Joseph R. Biden Jr. and senior members of the Democratic leadership in the Senate.

They recognized enshrining the tyranny of the majority would put a permanent end to any hope of bipartisanship and would cause legislative chaos every time the Senate changed hands.

Under rules adopted in 1975, senators no longer have to remain on the floor during a filibuster, as Jefferson Smith did in the classic film "Mr. Smith Goes to Washington." In addition to the 51-vote threshold, Reid and the others are considering reinstating the "make them filibuster" rule to discourage filibusters.

Reid had it right in 2005. The Founders knew the value to democracy of their system of checks and balances, and a Senate that sometimes moves like molasses in winter is one of them.

 

 

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