Now that Al Franken has been seated as the junior senator from Minnesota, there's likely to be much talk of a "filibuster-proof" Senate. But having the ability to cut off debate doesn't mean that on all issues and votes the Senate will be filibuster-proof.
Unlike the House of Representatives, independence and individualism in the Senate are time-honored traditions. Add to that the fact that the body is filled with large numbers of Democratic moderates such as Max Baucus, Ben Nelson, Blanche Lincoln, and Arlen Specter, who often don't see eye to eye with their more liberal colleagues. As Senator Nelson said recently, "I would remind the President that having 60 (Democratic) members does not equate to having 60 votes."
So we can expect crucial measures such as the Employee Free Choice Act to pass easily in the House, only to get bogged down in the upper chamber long known - affectionately and otherwise - as the "world's greatest deliberative body."
Of course, deliberation and the modern filibuster have little in common. In the modern era, the Senate seldom takes up legislation unless the majority has counted 60 votes. In other words, a credible threat that 41 Senators won't vote for cloture is usually enough to keep a bill off the floor. Even bills that have overwhelming support are often slowed down by something called a "hold." All of these delaying tactics foster legislative paralysis and impair the Senate's ability to do its work.
The first order of business should be to require members to actually hold the floor as in the days of Senators Huey Long and Strom Thurmond. If that were the case, most filibusters would end quickly. The reason is that we live in an age where this public disgust over partisan gridlock. Public airing of the old-fashioned filibuster on C-Span and elsewhere would not be something most Senators would want the public to see. Best of all, no change in Senate rules would be required.
But if the Democrats play their cards right, they might soon be in a position to enact major legislation lacking bipartisan support with fewer than 60 votes. That small difference could make a huge difference to the prospects for moving the Democratic agenda.
Political scientists Gregory Wawro and Eric Schickler say the goal of lowering the votes necessary to end extended debate can be accomplished by the majority party by using parliamentary rulings from the chair. In their 2006 treatise on the filibuster, they put it this way: "While certain decisions may require a supermajority, the decision to require a supermajority is ultimately majoritarian itself. Supermajority procedures are the objects of majoritarian choice, and therefore can (in principle) can be changed by a majority as long as a supportive vice president or senator is seated in the chair."
The "nuclear option" described above would reduce the threshold for passage of legislation to 51 senators. At that point, the Republicans would no doubt be searching for a way to compromise in much the same way that senators did in 1959 and 1975 when changes to Rule XXII of the Standing Rules of the Senate were adopted.
As an example, the majority could then use the threat of a "nuclear option" as a way to reduce the threshold for cloture in Rule XXII from 60% of all members to 60% of those present and voting.(A little history is in order here. The original cloture rule contained in Rule XXII was adopted in 1917. It provided that debate could be cut off by a vote of 2/3 of members present and voting. That threshold was reduced in 1975 to 3/5 of all members.)
To those who say the filibuster is anti-democratic and should be done away with completely, it should be noted that Democrats haven't been any more inclined than Republicans in the past to end the practice. In particular, Democrats have at various times used the filibuster to their advantage and eliminating it in its entirety would be problematic to some of them as well as difficult to achieve politically.
Whether real reform comes about now will depend on the importance of the issue under consideration and the public outcry that would accompany the Senate's failure to act.
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The writer is a researcher at Demos, a New York-based public policy institute.
