If they are going to Filibuster…Make ‘em really Filibuster

Now with all this talk about the 60 votes needed to pass anything in the Senate, I got to thinking. It turns out that the Republicans' so-called filibuster of everything the Dems want isn't really a filibuster at all. The Majority Leader could refuse to put a "hold" on a bill and force the Republicans into a real stand up and talk filibuster with real political risks if they want to block it.

First of all I was surprised because we never heard about this when the Republicans were in control with fewer than 60 Senators, and the Democrats were in the minority. I couldn’t help but wonder why the Democrats didn’t avail themselves of this rule to block the many abuses of the Bush Administration. There wasn’t any filibuster to block the Patriot Act (oh sorry, the Dems voted for that one en masse.), or the war in Afghanistan (they liked that one too); Going to war in Iraq; funding the war year after year; massive tax cuts for the rich and huge defense budgets that produced record deficits. The Dems never filibustered Supreme Court nominations of Scalia, Roberts, Thomas or Alito even though it was obvious they would lead the court in the wrong direction. And they have, with, most recently, the decision that rolls back a century of campaign finance reform, allowing faceless corporations to flood the political landscape with cash.

So, the Democrats are to be faulted for not doing everything they could, but to be fair, the Republicans’ use of the filibuster is unprecedented. They are using it to stop the majority from doing anything at all and then blaming the Democrats for not getting anything done. This strategy may not make friends for Republicans but it does appear to be alienating the Democrats from ordinary voters. With only two political parties, a negative image of the Democrats helps the Republicans. Although I hate what they are doing, I have to admire their organization and party discipline. If the Democrats had the same determination and discipline to carry out the mandate conferred on them by the voters in 2006 and 2008, they could achieve wonders. At least they could if they wanted to. Unfortunately, it appears that they don’t want to. You can speculate why all night but the fact remains that if they haven’t exercised party discipline or used every tool available to get their program passed.

Now, back to the 60 vote rule. What this refers to is a long Senate tradition of not limiting debate. In the House of Representatives, there are strict limits on how long a member can speak on a particular item before it comes to a vote. Not so in the Senate. One Senator can hold up a vote for as long as they can talk day and night. That is a filibuster. However, Senate Rule 22, Part 2, allows 3/5 of the Senate, or 60 Senators, to overcome this tradition and limit the debate, so a bill can come to a vote. Over the years, filibusters have been relatively rare, most often to oppose Civil Rights legislation. Since a filibuster can only oppose, it is most effectively used to support the status quo. Thus it is essentially a conservative tool, and that is how it has most often been used. It is anti-democratic because it can be used to thwart the will of the majority, as is happening now.

It is difficult to pull off because it requires a lot of stamina to keep going. One person will eventually have to stop. A group could theoretically take turns and keep going but at a price. They very visibly paralyze the Senate, actually all of Congress because nothing gets done without the Senate. If you saw Jimmy Stewart in “Mr. Smith Goes to Washington”, you get the picture. The majority has to decide, if they can’t get the votes to stop it, how long they are willing to let everything stop. Eventually somebody gives.

But, this isn’t the way its been working. It turns out that since 1975, the Majority Leader has extended a courtesy to any Senator to put a “hold” on any bill or nomination. As long as the Senator continues the “hold” nothing happens with that bill. It gives any Senator the power to filibuster without having to actually keep talking and without blocking the rest of the Senate’s business.

Here is the Definition of a “hold” from the Senate website:

hold - An informal practice by which a Senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. The Majority Leader need not follow the Senator's wishes, but is on notice that the opposing Senator may filibuster any motion to proceed to consider the measure.

Note that this is an informal process and “The Majority Leader need not follow the Senator's wishes”. This process is not part of Rule 22, or any other Rule of the Senate. It is entirely up to the Majority Leader. Senator Reid could wake up tomorrow and declare an end to the “hold”. He could bring up a Healthcare bill with Single Payer or a strong public option, the strongest bill that he could get 51 Senators to vote for, and bring it to a vote. Of course, the Republicans would still be able to filibuster it for real, (that is in the Senate Rules) and without 60 votes the filibuster could last for a while. However their game of blocking progress and then blaming the Democrats would be harder when the Republicans were forced to do their blocking in the glare of publicity.

Activists on both sides would be mobilized, which is good for our democracy. (Its always good when people break out of their political passivity) The next election might actually be decided by a spirited debate on the issues. Remember, the Democrats’ positions agree with the voters. The right is already mobilizing, so the Democrats had better find a way to mobilize their base or they could be in trouble. Progressives have become disaffected from Democratic leaders because they haven’t delivered on their campaign promise of Change. If the Dems stuck it out and passed a strong bill with a mobilized electorate behind them it could be even better than Obama’s promise of “Hope” in 2008. (and we would have a better healthcare system)