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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Time Right for Filibuster Reform?

The political predicament facing Dems as a result of the GOP-Obama tax cut deal provides yet another example of how the threat of a filibuster frustrates Democratic reforms and undermines democracy. The House passed a perfectly reasonable tax bill, the provisions of which are supported by a majority of Americans in opinion poll data. A majority of the Senate supports it, but the bill is dumped because it doesn’t have 60 votes needed to invoke cloture and avoid the threat of a filibuster.
The distinction between the threat of a filibuster and an actual filibuster is important,as Tim Fernholz of the American Prospect explains in his post, “Challenging the Filibuster Old Guard: A new group of Democratic senators is poised to challenge the filibuster in the next term.” Says Fernholz in this excerpt:

“By a vote of 53 to 36, the Senate defeated a proposal to extend tax cuts first on those earning up to $250,000 in income,” Capitol Hill’s Roll Call explained over the weekend. It was a typical Senate defeat, where a majority supported the losing measure and a minority achieved a filibustered veto.
It’s been well observed in Washington that it doesn’t cost much to filibuster: Senators don’t have to speak or stay on the floor of the Senate. They only need to say a few words to their leaders, and the whole institution grinds to a halt. The public, of course, doesn’t see that level of detail, which makes things difficult for those interested in reform — but that could change.

Fernholz reports that Sen. Jeff Merkley (D-OR) has accepted the challenge to provide the needed leadership for filibuster reform:

Merkley has floated a proposal to reform the filibuster by forcing senators to actually take to the floor to obstruct Senate debate and by limiting the number of times the maneuver can be used to stop a piece of legislation. He and several allies hope it will win the support of 51 senators when the new Congress comes into session in January, the easiest time to amend the Senate’s rules.

Such measure, if adopted, would drastically reduce the use of the filibuster, the threat of which is deployed more than twice a week on average, compared to about three times a year back in the 1960’s, according to Fernholz. He reports that Sen Dodd and other “institutionalists” oppose reform, basically because they feel it weakens Senate power relative to the House.
But Merkley responds,

This is not the framework in which anyone who cares about the function of the institution would feel like the institution is functioning well…If we turn the clock back 30 years … senators understood that for them, individually, to hold up the work of the Senate, it had to be an issue of profound importance to the nation. That understanding is gone.

On Jan 5th Sen Tom Udall will try to bring a filibuster reform measure to the senate floor, reports Fernholz. But it too can be filibustered, with two-thirds of ‘those present and voting’ needed to invoke cloture on a rule change. Despite the concerns of the “institutionalists,” Democrats should support it. It’s just unacceptable that nothing can pass without 60 senate votes, and this is one of the few measures that might be able to help.
Some Dems may argue that we could lose a lot of senate seats in ’12, since we have 21 senators (plus 2 pro-Dem Independents) up for re-election and the GOP has only 10. We could also lose the presidency, in which case the filibuster begins to look like a tool we can use to obstruct Republican legislation, including the gutting of health care reform. It’s a solid argument, as far as it goes.
The fact remains, however, that Democratic prospects for enacting significant reforms that reflect progressive values are slim, as long as the opposition can trot out the mere threat of a filibuster to obstruct any legislation they don’t like. Reforms supported by the Democratic Party are being held hostage by the threat of filibusters, and we need to put an end to it.
Yes, the GOP is enjoying the benefits of filibuster threats right now, because it serves their obstructionist agenda. But, looking forward, some of them have to be thinking “we could have a majority in both houses, plus the presidency after the ’12 election. Then the filibuster is our problem, so maybe changing the rules now is our best option for enacting our legislative agenda.” Some GOP votes in favor of Merkley’s proposal are not out of the question.
The old JFK adage (borrowed from a Chinese proverb) about every crisis presenting both dangers and opportunities applies nicely at this twilight political moment, when partisan power distribution is fairly equal, but in flux.
There are other possible routes to filibuster reform, including reducing the number needed to invoke cloture or even abolishing the filibuster altogether. But right now Merkley’s proposal is the one that seems to have the energy behind it. We may not get another chance for a long time.

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