This past spring, Senator Claire McCaskill wrote to me asking for $50 to help elect more Democrats, so we could have a filibuster-proof Senate. Now that Al Franken has finally been declared the sixtieth Democratic senator, her plea may seem moot. But even with Franken in office, we don't have a filibuster-proof Senate. To get to sixty on the Democratic side, we'll still have to cut deals with Democrats like Max Baucus, Ben Nelson and others who cat around as Blue Dogs from vote to vote. Whether or not Senator Arlen Specter is a Democrat, the real Democrats will still have to cut the same deals to get sixty votes.
Maybe we loyal Dems should start sending postcards like the following: "Dear Senator: Why do you keep asking for my money? You've already got the fifty-one votes you need to get rid of the filibuster rule." It's true--McCaskill and her colleagues could get rid of it tomorrow. Then we really would have a Democratic Senate, like our Democratic House.
She won't. The Democratic Senatorial Campaign Committee, which paid for her appeal, won't. They use the filibuster threat to hit us up for money. And as long as they do, you and I will keep on kicking in for a "filibuster-proof" Senate, which, with or without Franken, will never exist. Every Obama initiative will teeter around sixty, only the deal-cutting will go on deeper in the back rooms and be less transparent than before.
In the meantime, playing it straighter than Claude Rains, McCaskill and other Democrats tell us how shocked, yes, shocked they are that this deal-cutting is going on. May I quote her spring letter? "I'm writing to you today because President Obama's agenda is in serious jeopardy..."
It still is, as long as it takes sixty and not fifty-one votes to pass Obama's bills. But no, here's what she says: "Why? Because Republicans in the Senate--the same ones who spent years kowtowing to George W. Bush--are determined to block each and every one of President Obama's initiatives."
But why is that a surprise, if there's a rule that lets forty-one senators block a bill? The surprise to people in other countries is that the Senate, already wildly malapportioned, with two senators from every state no matter how big or small the population, does not observe majority rule. Her next line:
"It's appalling really."
It sure is--the way she and other Democratic senators keep the filibuster in place. But let her go on:
"They're the ones who got us into this mess. Now they want to stand in the way of every positive thing the President tries to do to set things right. I'm sure it frustrates you as much as it does me."
Yes, Senator, it frustrates me. But Democratic senators who let this happen and then ask for my money frustrate me even more.
As a labor lawyer, I have seen the Senate filibuster kill labor law reform--kill the right to join a union, freely and fairly--in 1978 and 1994. And, no doubt, in 2010.
And in the end, all we get is a letter from Senator McCaskill asking for more money. Of course, I know there are all sorts of arguments made for the filibuster. For example: "But the filibuster is part of our country's history, and there's much to be said for respecting our history and tradition." Yes, well, slavery and segregation are also part of our history, and that's what the filibuster was used to defend. I'm all in favor of history and tradition, but I see no reason to go on cherishing either the filibuster or the Confederate flag.
Besides, that's not the filibuster we're dealing with.
The post-1975 procedural filibuster is entirely unlike the old filibuster, the one Mr. Smith, as played by the unshaven Jimmy Stewart, stayed up all night to mount in his plea for honest government (though usually it was Senator Bullhorn defending Jim Crow). The old filibuster that you and I and Frank Capra and the Confederacy love so much was very rare, and now it's extinct. No one has stood up and read recipes for Campbell's Soup for decades. In 1975 Vice President Nelson Rockefeller, in his role as president of the Senate, ruled that just fifty-one senators could vote to get rid of the filibuster entirely. A simple majority of liberals could now force change on a frightened old guard. But instead of dumping the filibuster once and for all, the liberals, unsure of their support, agreed to a "reformed" Rule 22. It was this reform that, by accident, turned the once-in-a-blue-moon filibuster into something that happens all the time. The idea was to reduce the votes needed to cut off debate from sixty-seven, which on the Hill is a big hill to climb, to just sixty. Liberals like Walter Mondale wanted to make it easier to push through civil rights and other progressive legislation. What's the harm in that?
The only problem is that, because the filibuster had rendered the chamber so laughable, with renegade members pulling all-nighters and blocking all the Senate's business, the "reformers" came up with a new procedural filibuster--the polite filibuster, the Bob Dole filibuster--to replace the cruder old-fashioned filibuster of Senate pirates like Strom Thurmond ("filibuster" comes from the Dutch word for freebooter, or pirate). The liberals of 1975 thought they could banish the dark Furies of American history, but they wound up spawning more demons than we'd ever seen before. Because the senators did not want to be laughed at by stand-up comedians, they ended their own stand-up acts with a rule that says, essentially:
"We aren't going to let the Senate pirates hold up business anymore. From now on, if those people want to filibuster, they can do it offstage. They can just file a motion that they want debate to continue on this measure indefinitely. We will then put the measure aside, and go back to it only if we get the sixty votes to cut off this not-really-happening debate."
In other words, the opposing senators don't have the stomach to stand up and read the chicken soup recipes. We call it the "procedural" filibuster, but what we really mean is the "pretend" filibuster.
But the procedural, or pretend, filibuster is an even worse form of piracy, an open invitation to senatorial predators to prey on neutral shipping, to which they might have given safe passage before. After all, why not "filibuster" if it's a freebie--if you don't actually have to stand up and talk in the chamber until you're not only half dead from exhaustion but have made yourself a laughingstock? That's what post-1975 senators began to do. In the 1960s, before the procedural filibuster, there were seven or fewer "old" filibusters in an entire term. In the most recent Senate term, there were 138.
At least with the old filibuster, we knew who was doing the filibustering. With the modern filibuster, senators can hold up bills without the public ever finding out their names. No one's accountable for obstructing. No senator runs the risk of looking like a fool. But while they're up there concealing one another's identity, the Republic is a shambles. And now, with a nominal sixty Democratic votes, the need for secrecy as to who has put everything on hold may be even greater than before.
"But just wait till 2010, when we get sixty-two or sixty-three Democrats." I'm sure that's what Senator McCaskill would tell me. "So come on, kick in." But Senator, where will they come from? They could come from bloody border states like yours (Missouri), or from deep inside the South. The problem with the filibuster is not so much that it puts Republicans in control but that it puts senators from conservative regions like the South, the border states and the Great Plains in control. The only true filibuster-proof Senate would be a majority that would be proof against those regions.
An astute book published in 2006, Thomas Schaller's Whistling Past Dixie, argued that to craft a presidential majority Democrats don't need the Southern vote. That may be true (although it turned out that Barack Obama made historic inroads in the South, winning three states there). But there is no way to whistle past Dixie when a non-Dixie presidential majority tries to get its program through the Senate. After 2010, we could have sixty-four Democrats in the Senate and still be in bad shape.
A filibuster-proof Senate, then, is a conceptual impossibility. Even with a hundred Democrats, a filibuster would still lock in a form of minority rule. Because among the Democrats there would arise two new subparties, with forty-one senators named "Baucus" blocking fifty-nine senators named "Brown."
Here's another argument for the filibuster: "If we get rid of it, we'll be powerless against the Republicans when they're in charge." That's why we need it, they say: we're waiting for the barbarians, for the nightmare of President Palin. People in the AFL-CIO tell me this even as the filibuster keeps the right to organize a union on ice and union membership keeps shrinking.
Or as a union general counsel said to me: "Everyone here in the DC office would be freaked out completely if we lost the filibuster. They think it's the only thing that saved us from Bush." Inside the Beltway, they all think it's the filibuster that saved those of us who read Paul Krugman from being shipped off to Guantánamo. Really, that's what many people on the left think. "If Bush ever came back, we'd need it."
Of course Bush, or a Bush equivalent, will come back--precisely because Obama and our side will be blocked by the filibuster. Obama is in peril until he gets the same constitutional power that FDR had, i.e., the right to pass a program with a simple majority (at least after Senator Huey Long finally ran out of words). But let's deal with the canard that the filibuster "saved" us from Bush. What's the evidence? Judicial nominations: that's the answer they give. Go ahead, name someone we blocked. Roberts? Alito? Of course there's Bork, whom we blocked in the 1980s. But we didn't block him with a filibuster.
Think seriously about whom we really stopped. Look, I'm all in favor of opposing atrocious right-wing nominations, and I admit that the filibuster, or at least the GOP's refusal to nuke it, did keep some appellate and district courts free of especially bad people. But I can tell you as a lawyer who does appellate work, who has to appear before these judges, it makes little difference to me if we lose the filibuster. All it means is that instead of a bad conservative, I end up with a really bad conservative. Either way, I still wind up losing.
I think I can say this on behalf of many liberal lawyers who appear before appellate courts: if we could give up the filibuster and get labor law reform or national health insurance, I'd put up with a slightly more disagreeable group of right-wing judges. We'll take the heat.
The fact is, as long as we have the filibuster, we ensure the discrediting of the Democratic Party and we're more likely, not less, to have a terrible bench.
Sure, sometimes liberal Democrats put the filibuster to good use when Republicans are in power. Sure, sometimes a liberal senator can use the filibuster to stop a piece of corporate piracy. It's impossible to prove that the filibuster never does any good. But the record is awfully thin. Look at all the financial deregulation that Senator Phil Gramm and leading Democrats like Larry Summers pushed through only a decade ago. The filibuster did not stop their effective repeal of the New Deal, but it would block the revival of it today.
On the other hand, Republicans and conservative Democrats use their filibusters on labor, health, the stimulus, everything. They can and will block all the change that Obama wanted us to believe in. And even when they lose, they win. For example, when we say that after a major rewriting of the stimulus package--a rewriting that seriously weakened the original bill--it "survived the filibuster," what we really mean is that it didn't.
But let's turn to the final objection: "No one in Washington cares about this. It's not on the agenda. It's a waste of time even to discuss it. What you're talking about is impossible."
What Washington insiders partly mean when they say this is, With a filibuster, any senator can stick up the Senate, and what senator is going to turn in his or her sidearm by giving up the right to demand sixty votes? That's why they're raising a million dollars a day. Otherwise, they'd be peacefully serving in the House. The right to filibuster is what makes each of them a small-town sheriff. That's why it would take massive marches in the streets to force them to give it up.
Indeed, it's hard to imagine how bloody the battle would be. The last time anything so traumatic happened on the Hill was in 1961, when the bigger procedural bar to majority rule was not in the Senate but the House. John Kennedy had just come in, and it was clear that his New Frontier program (we still didn't have Medicare) would go nowhere because of the power of the House Rules Committee chair, the now forgotten "Judge" Howard Smith. Kennedy had to enlist the Speaker of the House, Sam Rayburn, to break Smith's power to stop any bill he disliked from leaving House Rules. In the end, the battle to beat Smith probably killed Rayburn, who died later in the year.
It was an awful power struggle, and many were aghast that Kennedy had thrown away all his capital for this cause. But had he not done it, there probably would not have been a Civil Rights Bill, or certainly not the full-blown version of the Great Society that Lyndon Johnson pushed through after Kennedy's assassination. Imagine having to fight the battle for Medicare today. Without that war on Judge Smith, what we now call the "liberal hour" would not have come.
Nor will any "liberal hour" come in our time, until we bring the filibuster down. I know it seems hopeless. But so did knocking out slavery when the abolitionists first started, or segregation, when civil rights activists began their struggle against Jim Crow. It's a fair enough analogy, since the filibuster is one of the last remnants of racist politics in America: it was a parliamentary tactic used by the Calhounians to make extra certain slavery would stay around.
We should adopt the strategy of the antislavery movement, which in the early stages had three approaches:
1. The laying of petitions on the House. Forgive the archaic legal phrase: I mean petitions to Congress, both houses. In the era of John Quincy Adams--in case you missed the Steven Spielberg movie--there would be mass petitions, with Adams and others reading them on the House floor to the howls of the Southerners. Every group busted by a filibuster should lay on a petition. And start with the House, which is the only place it has a chance of being read.
2. Resolutions by the House, as a warm-up for the Senate. Such resolutions might read: "Resolved, that Congress has no authority to require supermajorities in any chamber except as authorized by the Constitution." Aren't House chairs tired of seeing their bills cast into black holes by senators whose names they never even know?
3. Evangelizing. The most effective tactic in the fight against slavery was the preaching of New England clergy against it. We can start in our battle against the filibuster by enlisting faculty at New England colleges to hold teach-ins. Teach the kids why "Yes, we can" can't happen with the current Senate rules.
By the way, the abolitionists knew the Senate was their enemy, just as it is our enemy today. Let's hope these tactics work for us in getting rid of this last vestige of slavery: Senate Rule 22. What's painful is that we have to cross some of our most sainted senators. But unless we decide to just give up on the Republic, there's no way out. To save the Obama presidency, we may have to fight our heroes.