This fiscal cliff stuff has gotten all the pundits talking. It's bad/OK/good to go over the cliff. A deal is a win/lose/draw for Obama/Boehner/Norquist. Obama bent over backwards/forwards/into a pretzel. And so on.
And what has completely escaped their attention during all this? Tomorrow, January 3, 2013, is the one and only chance Senate Democrats have to do something about the filibuster. For the next two years.
Just as January 3, 2011, was their one and only chance two years ago. And what happened then?
I sure hope some Senators with spines are working on this one. I don't want to see democracy fade away for two more years like Brigadoon.
Politically, we know three things. (1) The filibuster, originally used for the purpose of extending debate on an issue, now completely prevents debate on any issue the minority party doesn't want to debate. (2) Without the filibuster, we would have had a better health care bill, a lot sooner. (3) The Republican Party will use any parliamentary device in its power to obstruct all legislation favored by Democrats.
Legally, a strong case can be made that the filibuster is unconstitutional. It is true that the Senate can make reasonable rules to prevent debate from being cut off for a short time before proceeding to a vote -- say, a rule providing one extra day of debate after a failed cloture vote on final passage. But the present rule is not geared to extend debate; its effect is to prevent debate as well as to prevent voting. Instead, it permits a minority to prevent a bill or nomination from ever proceeding to the floor for a vote. Such a rule cannot survive constitutional scrutiny. In particular:
1) The Constitution requires that all bills which have "passed" in both Houses be presented to the President. "Pass" must mean by a majority vote. It would be unconstitutional as well as foolish for the Senate to have a rule that a final vote must be by a supermajority. The filibuster rule has the same effect, inasmuch as it absolutely prohibits a vote unless a supermajority of Senators concur.
2) The Constitution explicitly requires a supermajority to (a) override a veto, (b) expel a member, or (c) pass a Constitutional amendment, and (d) allows one-fifth of those present to require a roll-call vote. By implication, all other votes require a simple majority.
3) Under the Constitution, "each Senator shall have one Vote." In fact, this provision applies only to the Senate. Yet as things presently stand, the votes of 40 Senators seeking to prevent a vote are equal to the votes of the other 60. Thus, during a filibuster, a Senator in the minority effectively has one and one-half votes when compared with the voting power of Senators in the majority.
4) The Supreme Court has effectively held that the checks and balances built into the Constitution create rights in the House, the Senate and the President that each of the others must respect. Thus, a bill may not allow one House to repeal legislation that has already been signed into law. Similarly, by nominating judges and executive officers, the President is, in effect, exercising the power to require the Senate to vote on those nominations. Therefore, each House must have a mechanism for a majority to bring a bill or nomination to the floor, unless the Constitution has explicitly and unambiguously provided otherwise.
Those are the reasons to get rid of the filibuster. The reasons to keep it -- only two that I can think of: (1) My Republican pals won't be nice to me in the Senate dining room; and (2) if I let them keep the filibuster, maybe they'll let me bring a highway-naming bill to the Senate floor once in a while.
As my mother used to say, if they behave the way they do, they're not your friends.
So let's keep the TV tuned to C-SPAN on Thursday. I can hardly wait to find out who wins this fight -- or even if it will be fought at all.