If the Democratic Party intends to get serious about governing, it can start by disabling the Republican filibuster that gives the minority party in the Senate a virtual veto over anything it wants to kill. The chatter in Washington assumes that since Democrats failed to gain a sixty-seat majority, there's nothing they can do. But that's not true. Democrats can change the rules and remove a malignant obstacle from the path of our new president. Given the emergency conditions facing the nation, why should Mitch McConnell and his right-wing colleagues get to decide what the Senate may vote on?
This proposition disturbs the happy talk about the "postpartisan" politics Barack Obama has inspired. But let's get real. McConnell is making nice for the moment, having survived his re-election scare in Kentucky. But he will use the filibuster to stymie the new Democratic administration whenever it looks to him like a political opportunity for Republicans. Thanks mainly to McConnell, the 110th Congress of 2007-08 set a new record--138 cloture motions to limit debate and head off filibusters. That is double the level of ten years ago. Who really believes McConnell will voluntarily give up his starring role as Senator No?
Last year, Democrats had a fifty-one-vote majority, but majority leader Harry Reid lamented their inability to overcome the minority. "The problem we have is that we don't have many moderate Republicans," Reid explained. In the new Congress there will be even fewer. Elections and retirements have left the surviving GOP caucus even more extreme in its ideology. The threat of a filibuster is its lever of power.
Democrats, on the other hand, have lost their last excuse for inaction. For years, they have blamed Bush's veto or the narrowly divided Senate for their weakness. Both are kaput. Now the Dems have the ability to step up and change the situation. But will they have the courage? Many of them like to hide behind Senate tradition, claiming it would be inappropriate to alter the rules. Nonsense. If Democrats allow the sixty-vote filibuster to survive, it is because they want to keep it as a convenient way to avoid taking responsibility.
The last time the Senate changed the cloture vote threshold to overcome a filibuster was in 1975, when the Democrats reduced it from sixty-seven to sixty votes. This time, the level can reasonably be reduced to fifty-five votes to break the GOP's stranglehold on major legislation. The argument for reform seems far more compelling now than it did in 1975. The filibuster ostensibly protects minority interests with the right to unlimited debate, but it has been used notoriously to accomplish the opposite. During the 1950s and '60s, Southern segregationists filibustered to block legislation intended to aid oppressed African-Americans--even a federal law against lynching. Liberals campaigned valiantly for years, without success, to reduce the sixty-seven-vote requirement.
In 1975 the filibuster issue was revived by post-Watergate Democrats frustrated in their efforts to enact popular reform legislation like campaign finance laws. Senator James Allen of Alabama, the most conservative Democrat in the Senate and a skillful parliamentary player, blocked them with a series of filibusters. Liberals were fed up with his delaying tactics. Senator Walter Mondale pushed a campaign to reduce the threshold from sixty-seven votes to a simple majority of fifty-one. In a parliamentary sleight of hand, the liberals broke Allen's filibuster by a majority vote, thus evading the sixty-seven-vote rule. (Senate rules say you can't change the rules without a cloture vote, but the Constitution says the Senate sets its own rules. As a practical matter, that means the majority can prevail whenever it decides to force the issue.) In 1975 the presiding officer during the debate, Vice President Rockefeller, first ruled with the liberals on a motion to declare Senator Allen out of order. When Allen appealed the "ruling of the chair" to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were losing the precedent, offered a compromise. Henceforth, the cloture rule would require only sixty votes to stop a filibuster.
If the tactic sounds familiar, it's because Republicans proposed the same approach a couple of years ago when they concocted their "nuclear option" to halt Democratic filibusters against right-wing judicial nominees. To avoid the confrontation, both parties negotiated a truce. Some Republican judges were withdrawn; others were confirmed.
Something similar ought to unfold in the new Congress next year. At a minimum, the larger Democratic majority should rattle its saber quite visibly and demand explicit new terms from McConnell's minority. Given the country's adversities, it is intolerable to let the remnant right wing hold up Congress for the next two years. If McConnell will not accept a reasonable compromise, then Democrats should jam it down his throat.
This is not a trivial matter. Already, Washington gossip is suggesting Democrats may postpone or even abandon crucial labor-law reform already passed by the House, because Senate Dems lack the sixty votes to break a GOP filibuster. The Employee Free Choice Act would liberate workers everywhere from the oppressive and often illegal tactics corporations use to prevent them from organizing unions. This fundamental human right, guaranteed by law, is systematically violated by sleazy corporate tricks--illegal intimidation of workers, including firing, and endless legal stalling. If enacted, the law could spark a revival of union organizing, helping citizens mobilize for a new era of reform and reinvigorated democracy.
President-elect Obama may hesitate to involve himself directly in the Senate's filibuster fight, but the success of his presidency may depend on the outcome. If Republicans can defeat him on the labor issue, they will doubtless use their negative leverage to foil him on other important matters. Bipartisan cooperation is an honorable tradition and should be encouraged. But first, the obstructionist Republicans need to learn who must cooperate with whom.