What About That Damn Senate Filibuster

I've been wanting to post about the Senate filibuster rule for awhile, but I had to go back and educate myself on the subject first. The rule has changed over time and there is a lot of misinformation about it. If you find I've made an error in this post, please let me know by leaving a comment.

The obstructionist filibuster has the effect of preventing a vote on a bill or a nomination unless the Senate invokes cloture, which requires 60 votes (3/5's of the full 100 Senate membership). There is an excellent editorial and series of comments about the filibuster at the New York Times if you are eager to read more. Also, check out this article at American Prospect.

As much as I think the filibuster/cloture rule violates the one person/one vote idea of democracy, I believe the rule is here to stay. The fact that Senate rules were changed in 1975 to permit cloture with only a 3/5’s vote versus a 2/3’s vote was a good change, but I think further change is unlikely.

As I understand it, a 2/3’s vote is required to change Senate rules. However, even if the Democrats had 2/3’s control of the Senate, there are certainly at least a few Democrats who would not vote to end the rule, e.g., Sen. Robert Byrd. The so-called "nuclear option" that Republicans threatened in 2005 would have been an end run around the rule, and the Democrats threatened to shut down the Senate if that option was used.

One bit of misinformation that I often hear is "why doesn't Harry Reid force Republicans to speak endlessly?" Harry Reid cannot force the Republicans to read from phone books or War and Peace. The filibuster and cloture do not work that way, despite Jimmy Stewart's role in Mr. Smith Goes to Washington.

The fact that Strom Thurmond did read from the phone book in 1957 was then a Senatorial courtesy to Thurmond. In that instance, the Senate had the votes for cloture, which they imposed at the end of his speech. They merely gave Thurmond his right to a “last stand” speech. Reid’s only option to fight the filibuster is to shut down the Senate, a tactic that has often backfired when used in the past.

Previously, the filibustering senator(s) could delay voting only by making an endless speech. Currently, they need only indicate that they are filibustering, thereby preventing the Senate from moving on to other business until the motion is withdrawn or enough votes are gathered for cloture. [Wikipedia]

It is highly unlikely the Courts will step into this controversy. The Senate has its own procedural rules, just as the Courts have their own procedural rules. It is also unlikely that Americans would amend the Constitution in such a way to change how the Senate is elected/formed or operates. That would take 3/4’s of the states to ratify such an amendment.

For good or for bad, we appear to be stuck with this Senate rule. If we Democrats want to keep the Party of No from blocking our legislation, we need to get off our asses and elect more Democratic Senators in 2010. Now that is "change we can believe in." And remember, when the Republicans regain control of the Senate again, we'll use the filibuster too.