The Filibuster Backlash

Is an anti-filibuster movement taking hold?

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The difficulties Democrats have faced in pushing health care reform to the brink of passage have cast a spotlight on the grossly antidemocratic nature of the filibuster. I’ve weighed in on this topic many times before, and (to toot my own horn) I called for the filibuster’s immediate elimination even while Republicans controlled the Senate, something you didn’t see a lot of my fellow liberals doing. Now that anti-filibusterism shows some promise of blossoming into a bona fide political movement, I can’t resist saying: Toldja so!

The argument against the filibuster is fairly straightforward: It takes a legislative body that is already insufficiently representative (if the Senate’s system of allocating two senators to states of varying populations weren’t written into the Constitution it would violate the Supreme Court’s “one man, one vote” ruling in Baker v. Carr) and renders it even less representative by permitting a 41-vote minority to block the will of the majority. The filibuster’s use, though largely malign in the past (segregationists famously used it to kill anti-lynching bills), was relatively spare. In the 1950s, the number of cloture motions filed (a proxy for the number of filibusters) averaged one per Congress. By the 93rd Congress (1973-75) that number had jumped to 44. By the 110th Congress (2007-09) it had risen to 139, a record that the 111th Congress (2009-present) is on track to match.

Today it is an accepted fact of life that the Senate can’t pass any major legislation without 60 votes. But as recently as two decades ago, all it usually needed was 51. In the January/February Atlantic, James Fallows writes that this change “converts the Senate from the ‘saucer’ George Washington called it, in which scalding ideas from the more temperamental House might ‘cool,’ into a deep freeze and a dead weight.”

The most widely cited enabler for the recent acceleration was a 1975 Senate rule change—one that, coming at a time when filibusters were on the rise, sought to reduce them by lowering the cloture requirement from 67 to 60 votes. But this fix (combined with a less widely cited earlier procedural change made in 1961) inadvertently increased the filibuster’s use by ushering in the so-called “procedural” filibuster, a sort of filibuster-lite that allowed the minority to block legislation without a dissenting senator’s having to speechify himself hoarse (as Strom Thurmond famously did in his record-breaking 24-hour filibuster against the 1957 Civil Rights Act). After 1975, the number of filed cloture motions briefly spiked, then plummeted, then began a mostly steady rise through the ‘80s and ‘90s as Washington’s political climate grew more nakedly partisan. In recent years, the worst abusers have been Republicans. Cloture motions leveled off during most of President George W. Bush’s presidency but took off like a rocket after the Democrats recaptured the Senate in 2007.

I’ll resist the temptation to further elaborate the case against the filibuster, which I consider airtight, because I have already done so many times in Slate. (See “Abolish the Filibuster!,” Feb. 1, 2001; “Why Democrats Should Kill the Filibuster,” June 5, 2003; “Let the Filibuster Die,” April 19, 2005; “Exile-Loving Democrats,” May 17, 2005; and “The Mr. Smith Fallacy,” May 24, 2005. I  have debated the issue on NPR with my pro-filibuster boss and fellow liberal Jacob Weisberg and on with the pro-filibuster conservative Byron York.)

Instead, let me take this occasion to blow on the embers of what might conceivably become a full-fledged political movement to eliminate the filibuster.

Petitions are actually starting to appear calling for the filibuster’s elimination. Thomas Geoghegan, a Democrat and Chicago labor lawyer who last year sought unsuccessfully to succeed Rahm Emanuel in the House of Representatives, posted one online in August. (Geoghegan, a longstanding critic of the filibuster, has written eloquently on the topic here and here.) Another petition was recently posted by Jonathan Tasini, a former president of the National Writers Union currently waging a primary challenge against New York Sen. Kirsten Gillibrand. Tasini has made this issue central to his Senate campaign. He is calling on every senator and every Senate candidate to pledge to vote to kill the filibuster, even though, as it happens, he opposes health care reform (he’s a single-payer guy). Rep. Alan Grayson, D-Fla., a slightly unhinged fellow who infuriated Republicans by reciting on the House floor the names of people in Republican districts who died because they didn’t have health insurance, has an anti-filibuster petition.

These people all stand well left of center politically. But in a way I find that especially heartening; the filibuster is a classic “process” issue of the type that previously interested mostly starchy Washington centrists like Norman Ornstein and Washington lifers like Sen. Tom Harkin, D-Iowa, who promises to reintroduce legislation allowing a succession of cloture votes requiring first 60 votes, then 57, then 54, and finally 51 to shut up the minority. Harkin’s former co-sponsor was none other than Sen. Joe Lieberman of Connecticut, whose own threatened filibuster helped kill health reform’s public option!

I wouldn’t count on Lieberman this time out. But if a genuine grass-roots movement develops to kill the filibuster, maybe we won’t need him.

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