Filibuster reform never comes easy, as Senate Democrats who had hoped to address abuses of the parliamentary procedure on the opening day of the 112th Congress were quickly reminded.
Instead of the quick and efficient reworking of Senate rules that some of the more naïve reformers had hoped for, opening day will not see a change to the filibuster rules that thwarted so many Democratic initiatives in the last Senate.
Senate Majority Leader Harry Reid, D-Nevada, effectively blocked action on the reform move by bringing the Senate in and out of session so quickly that no time was available for the rules debate.
That does not mean, however, that the push for filibuster reform is dead.
Oregon Senator Jeff Merkley, a key player in the reform push, said Reid had set a schedule that put the Senate in session "just for a single day this Wednesday and then [arranged for senators to] come back in on the 23rd or 24th."
Will reform come then? Merkley hopes so. "By precedent, by tradition, which weighs heavily in the Senate, and by a certain common sense logic, at the start of a two-year period, you set your rules out at the beginning," the senator says.
But there are certainly no guarantees that the filibuster—or the dysfunctional Senate—will be fixed then.
If anything, history suggests that the struggle could go on longer—perhaps a lot longer.
the 1950s, the 1960s and the 1970s, reformers battled from Congress to Congress before removing barriers that prevented the advance of civil rights and social-welfare programs that, while broadly supported, could not overcome the opposition of southern segregationists and their conservative allies in the Senate.
One effort—to revise the cloture requirement from a very two-thirds of senators (sixty-seven) to three-fifths (sixty)—began in the mid-1960s and did not succeed until 1975, when Democrat reformers were riding high after sweeping the "Watergate election" of 1974. Even then, recalls former Vice President Walter Mondale, who as a senator from Minnesota led the reform push, the "long negotiations" extended from the seating of the new Senate in early January until March 8, 1975.
Over the months and years, the calls for reform became more frequent and loud. The New York Times moved from caution to regularly editorializing "Against King Filibuster."
"51 members of the Senate have it in their power to advance the cause of responsible democracy by their votes…" the newpaper declared. "The public expects nothing less."
What the public expects, or what it is presumed to expect, will be just as important as the current fight plays out.
During the period between now and January 23 or 24, the debate about the filibuster—a legislative tool once used sparingly but now so common that New Mexico Senator Tom Udall, another reformer, says of the Senate: "We’re, in fact, in a constant state of filibuster"—will intensify.
Senate Republicans are objecting to reform proposals, with minority leader Mitch McConnell, R-Kentucky, blunting declaring: "For two years, Democrats in Congress have hoped their large majorities would make it easy for them to pass extremely partisan legislation. Now that they’ve lost an election, they’ve decided to change the rules rather than change their behavior. They should resist the impulse."
Democrats, after a brief show of unity in opposition to the existing rules, are now showing signs of division. Senator Claire McCaskill, D-Missouri, has been warning that any move to limit the filibuster could blow up on Democrats if they find themselves in the minority position after the 2012 election. Arguing for a "pretty modest effort," McCaskill says "no one is naïve here…we have a very evenly divided Senate now and I don’t think any of us think that it’s beyond the possible that the Democrats can be in the minority in a couple of years."
It’s no secret that Reid is looking for a compromise, perhaps in the form of an agreement with McConnell to maintain existing rules but limit the range of issue that can be filibustered.
Ultimately, the question could well be decided by what happens far from Washington.
The intensity of grassroots support for—or opposition to—filibuster reform will play a critical role in determining how hard and how far the Senate Democratic Caucus will go in pushing for reform.
Conservative talk-radio hosts were rushing to stir their base to block reform.
What will progressives, who have for so long been so frustrated by the filibuster, do?
The signals from leaders of groups associated with the Fix the Senate Now movement are encouraging. "The filibuster has proven to be one of the most potent legislative tactics ever used to deny Americans their basic civil and human rights," argues Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights. "Once used to perpetuate lynchings across the South and disenfranchise African-Americans, it is now being used to obstruct pay equity for women, human rights for immigrants and the basic rights of LGBT individuals. The civil rights movement, which first coalesced around filibuster reform, believes additional reforms are necessary to move our country forward."
Henderson’s message is the right one. This is not just about parliamentary procedure. This is about the impact that abuses of the filibuster do to real people.
It is echoed by Communications Workers of America (CWA) President Larry Cohen, who notes: "No other democracy has a legislative body that depends on unanimous consent like the U.S. Senate. In the last session more than 400 measures passed by the House were never debated by a Senate ruled by gridlock and obstructionism. Reform that would require Senators choosing to filibuster to actually hold the Senate floor and lay out their arguments in full public view will strengthen our democracy and enable the Senate to meet the challenges of our time. If the Senate rules aren’t changed, we all lose."