Catch XXII

Democracy has its flaws, one of which being the notion that it's perfectly all right for the majority to impose its will on the minority. But flaws and all, it's still a better system than the opposite...a system in which the minority imposes it's will on the majority.

That's what we've had in the Senate for years; a system where the minority can impose its will on the majority. And it's time for that to end.

The history of filibuster goes back at least to ancient Rome, where Roman senator Cato the Younger (95 BC to 46 BC), faced with legislation that he disagreed with, would obstruct said legislation by holding the floor of the Roman senate and speaking continuously until nightfall. It has been practiced, in one form or another, in most democracies right through today.

The U.S. Senate has its own variation. There, a senator or senators can speak for as long as they want on any topic, thus preventing the Senate from performing any business (and, of course, blocking whatever legislation they're opposed to) unless three fifths of the Senate (60 votes) votes to shut them up. You don't need to be a math wizard to figure out that, with a 55% Democratic majority in the Senate, any bill opposed by all (or nearly all) Republican senators ain't goin' nowhere. (In practice, they don't actually have to keep talking; the threat to do so is sufficient.)

Theoretically, any successful effort to block a filibuster would require a bipartisan effort; practically, in this bitterly divided Senate getting 60% to agree to halt the nonsense is not going to happen. And any effort to alter or eliminate the rules allowing filibuster would be subject to filibuster. (And you wonder why nothing ever gets done in Washington.)

But hang on...there's a way around this.

Specifically, changing the filibuster rules requires getting around Senate Rule XXII, which currently requires a two-thirds vote on any rule change. But there is a way around Rule XXII: what's called the "Constitutional Option" in which the Senate can, on the first day of a session, alter its rules by a simple majority vote. That's 51 votes out of 100. The Democrats can probably manage that.

(It's called the "Constitutional Option" because the Constitution requires that the will of the majority be effective on specific Senate duties and procedures. Just how "constitutional" it would be to skirt the 60% rule is somewhat debatable, and no one really wants that debate. It's also been called the "Nuclear Option" ever since the Republicans threatened to use it against Democrats filibustering against ten of GWB's judicial nominations back in 2005.)

No one wants to use this option, but the threat of it is always there. Obviously, no one wants to mess around with the Constitution without a damn good reason. This year, it appears that the Democrats feel that continual Republican obstructionism constitutes a damn good reason.

Senate Majority Leader Harry Reid has promised to change Senate rules on day one (well, that's the only day he could do it). Senator-elect Elizabeth Warren, writing in The Huffington Post, has argued strongly in favor of filibuster reform. Senators Tom Udall and Jeff Merkley are actively trying to line up the necessary 51 votes.

They don't have them yet. Not every Democrat wants the rule change, in part because some don't want to do this with Constitutional trickery and in part because filibuster is a powerful weapon in a Senator's arsenal and some of them just don't want to give that up.

It looks like the rule change just might happen. And it might not.

(I should point out that the proposed rule change will not end filibuster; filibustering senators will still be able to hold the floor and keep talking. And talking. And talking. With the whole nation watching.)

My own feeling is that filibuster should have no place in the Senate. Yes, I realize that I might feel differently if my party were in the minority, but that's not the point; it's wrong, no matter which party is in power. If the Nuclear Option is the only way to get rid of this abomination, I say duck and cover.

The Blues Viking

The opinions here expressed are mine and if you don’t like them you can get your own damn blog.

Wikipedia on the Constitutional (Nuclear) Option

Filibuster reform: avoid the 'nuclear option' (Standard-Examiner, Ogden, Utah)

Elizabeth Warren argues strongly for filibuster reform (Daily Kos)

Democratic Solution to the Filibuster:  Make Them Talk (The Huffington Post)