Dear Senator Reid,
You have defended the filibuster in the past, but your duty as Senate majority leader at the present moment is to restore majority rule. Right now, the Senate operates under a supermajority rule that the founders never intended and that has no precedent in the way the Senate used to operate. The problem is not the old-fashioned “talking filibuster” but the absence of the filibuster: it’s the need to find sixty votes to cut off debate even when there is no debate to cut off. In the old days, up to the 1970s, the filibuster was so time-consuming and conspicuous the Senate could accommodate only a handful per session, and even these sometimes failed to hold off a majority vote. The filibuster that Mr. Smith undertook in the Frank Capra movie was aimed at rallying the country behind him. He wanted the rest of us to pay attention. But that’s the last thing the Republicans use the filibuster for now. They use it to silence debate. So bills are strangled to death with no debate, not even a muffled cry, over and over.
After just a year of these “procedural” or “ghost” filibusters, the Obama presidency is in jeopardy. Although the Democrats have a landslide number of senators, one might think from the media that they are in the minority. The president even talked in his State of the Union address as if the Republicans were in charge. Certainly we should reform Senate Rule 22, which requires sixty votes to cut off debate, as Senator Tom Harkin has proposed. But the failure of nerve at the moment is not so much the failure to change Senate Rule 22 but the failure to make the Republicans debate at all.
Indeed, we are unlikely to succeed in changing Rule 22 unless you call the minority’s bluff. The way to end the virtual filibuster is to start forcing a real one, to take place in real time, with hour after hour of senators really talking. The only way to delegitimize the filibuster is to let the minority do it–let them do it over and over. Let them do it for trivial things. Let the country see the absurdity to which the procedural filibuster leads.
It would be wise to begin not with the most visible measures that senators have threatened to filibuster but with the least. Let’s start with appointments to the Justice Department or even Homeland Security. In the middle of the worst economic crisis since the Great Depression, at least four Treasury nominees are on procedural hold.
No one believes you have the nerve to force a filibuster over such routine matters–even if the government ends up not being staffed. But that’s exactly why you should do it: let the other side shut down the Senate for weeks over the appointment of a John or Jane Doe. Let the country meet John or Jane Doe and then try to figure out why we need to put public business on hold while we have an endless debate over this person. Don’t let the other side talk you into structuring the debate on a “dual” track: do it by Robert’s Rules and have the Senate debate just this, until the other side is ready to stop. Only by concentrating on the small things can you break the back of the filibuster-as-threat. Once broken in the smaller battles, it will lose its acceptability for the big ones.
As a practical matter, there isn’t space on a Senate calendar to have filibuster after filibuster without shutting down if not the entire government then at least Congress. Let Republicans explain to the country, one filibuster at a time, why it is so necessary to shut down Congress, especially when it’s to keep a midlevel Mr. or Ms. X out of a job.
When the country has had enough, bring forward Senator Harkin’s proposal to change Rule 22: since it’s not technically a rule change but a bill, the proposal presumably avoids the need to wait until the beginning of the next Senate term. The Harkin bill would require a series of staged votes to cut off a filibuster: the first motion for cloture would take sixty votes, then fifty-seven, then fifty-four and finally a simple majority–so if a bill survives debate, it can become law.
Yes, laws should not be passed lightly. But the best check is a majority, not a supermajority, vote. In fact, contrary to the claims of its defenders, supermajority rule fosters greater risk, not prudence. For if it takes a supermajority to put in a law, it will take a supermajority to get it out. To enact any law under such circumstances means it will be much harder to remove bad ones.
But before we can end supermajority rule, the groundwork has to be laid. First we must demonstrate the irresponsibility of the filibuster. That is your responsibility. Senator Harkin has stepped forward. So has Senator Udall.
Let the filibuster be the filibuster. If it is an obstructionist tactic, let it obstruct. If the Republicans want to shut down the presidency, make them shut down the Senate. If you take on this battle, you will have the country behind you. For the majority of Americans–yes, even Mr. Smith–want the government to work.