Momentum seems to be building among Congress-watchers to push Senate Majority Leader Harry Reid into taking on the GOP's filibuster threat. An OpEd in today's New York Times, written by emeritus professor David E. RePass, makes an interesting point:
The mere threat of a filibuster has become a filibuster, a phantom filibuster. Instead of needing a sufficient number of dedicated senators to hold the floor for many days and nights, all it takes to block movement on a bill is for 41 senators to raise their little fingers in opposition.
I find this compelling. While I've been torn about this issue (60 votes, after all, are needed for cloture), folks I respect on this site have been saying with some urgency that calling the GOP's bluff would put the party on the wrong side of every single issue favored by the American public today: education, health care reform, green energy policy. I'm becoming convinced that we have to stop letting them hold us hostage, and instead let them put their re-election bids on the line.
2010 is just over the horizon after all.
I'm not talking about Trent Lott's so-called "nuclear option" here, though that's certainly something to consider. Some googling this morning brough me to Farhad Manjoo's opinion piece in salon.com in 2005 when the nuclear option was being considered,
Republicans may not be wrong to want to eliminate the filibuster, and Democrats have nothing to lose by letting the GOP win this one. The filibuster is, after all, one of the more anti-democratic parliamentary maneuvers in the federal government's most undemocratic body, the Senate. A tactic not envisioned by the founders, and most famously used by Southern racists to frustrate the passage of civil rights legislation, the filibuster doesn't exactly have a savory tradition.
Even at its undemocratic worst, though, the filibuster may help the Democrats pull down the smile-y GOP mask (already slipping, to judge from the internal fracas over Rush Limbaugh's de facto leadership). Putting things on the floor and daring a filibuster lets the GOP---yet again---hoist itself by its own petard. Clueless about the economy, and out of touch with their constituents, they'll be eager go to the extreme of filibustering highly popular measures in the Senate, at least once. And this gives the Democrats the best possible campaign material for 2010.
Professor RePass' history of the filibuster is very instructive (and I urge you to read it in full):
Historically, the filibuster was justified as a last-ditch defense of minority rights. Under this principle, an intense opposition should be able to protect itself from the tyranny of the majority. But today, the minority does not have to be intense at all. Its members have only to disagree with a measure to kill it. Essentially, the minority has veto power.
The phantom filibuster is clearly unconstitutional. The founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.
And fixing the problem would not require any change in Senate rules. The phantom filibuster could be done away with overnight by the Senate majority leader, Harry Reid. All he needs to do is call the minority’s bluff by bringing a challenged measure to the floor and letting the debate begin.
The American people are suffering. They want real change. The GOP is terrified of this and wants to block any substantial reform. OK, then. Let's give them a chance to put their lack of compassion in all its meanspirited glory on the evening news for the whole nation to see. My guess is, they'll try it once, and when the phone stops ringing at their state HQs, they'll not be too eager to try it again.