Finally! The election is over and we can hope for some change. Now can we really get something done?
The biggest remaining worry is that Republicans still hold enough seats in the Senate to force a filibuster. Next year, Democrats will have a bigger majority than they have had the last two years and we can hope that they will elect a stronger leader, but the fact is that Republicans can still filibuster. This means that Republicans can block any legislation.
It is likely that they will do it quite a lot, just as they have done in the current session. I've had trouble finding the exact number, but I understand that Republican senators have filibustered more than 90 bills in this session and that is a record. In fact the previous record was 57 filibusters in a session. There is no reason to think that under the current rules they will filibuster any less in the next session and this could easily mean that there will be no health care plan, no progressive tax reform, no education bills, etc.
The fact is that without the cooperation of Congress, the only thing that Obama can do is to issue executive orders. Not that this is a minor thing, but legislation for any major new program will have to pass the Senate as well as the House and unfortunately there are still enough Republicans in the Senate to block any and all legislation. Recent history seems to show that they are disciplined enough to do just that. While it is true that individual Republican Senators will sometimes stray from the flock, we will again see that this is really for show. When they want to block legislation (and any important legislation they will want to block) they will have just enough votes to block cloture and the legislation will die.
Can Anything be Done?
Filibusters happen in the Senate as a result of Senate rules and the rules themselves are decided by a simple majority. In 2005, Trent Lott threatened the so-called nuclear option of ending filibusters, but a deal was reached in which Bush won approval of his judicial appointments in exchange for the Republican Senate not eliminating filibusters. Democrats, then in the minority, were understandably fearful of losing this thin reed of power and were willing to further weaken the reed in order to avoid losing it entirely.
Filibusters have often been invoked in the past for very good causes and Democrats should indeed be cautious about eliminating this legislative tool. For now, Democrats are in the majority and filibusters are just a nuisance, but in the future they could again serve a good purpose, for example to keep a future Congress from crippling Social Security or Medicare.
There are some changes that the new Senate could consider, however that fall short of just eliminating the filibuster.
Republicans often talk of personal responsibility. Often they use these words in reference to the poor who, they think, should take personal responsibility for pulling themselves up by their own bootstraps, or perhaps to somehow acquire some bootstraps. SCHIP could not be allowed to provide health care for indigent children because they (or their parents) should show some personal responsibility and provide that health care out of their empty pockets.
A change in the filibuster rules could give Republican Senators some of the personal responsibility that they crave. This change would be that only a simple majority vote is needed for cloture unless some Senator chooses, as a matter of personal responsibility, to invoke a filibuster and in that case a super-majority would be required. This would mean that one particular senator would have to publicly take individual responsibility for blocking particular legislation.
Taking this individual responsibility could be a point of honor, say for a Senator blocking the privatization of Social Security, or it could be the opposite, say for a Senator blocking childrens' health care or education. Just this simple change could make Senators more considerate of the wishes of the voters that they will call on to re-elect them. They could no longer hide behind letting their voters believe other anonymous Senators are responsible.
A problem with this simple change is that there are always Senators who do not intend to run for election again and it is likely that these lame-duck Senators would take responsibility for all of the filibusters.
Another change to the rules could counter this, however. The first time a Senator sponsors a filibuster the super-majority would be 60 votes, the second time, 55 and subsequently only 51.
Alternatively, there could just be a simple limit of one filibuster per Senator per session of congress.
The term 'filibuster' was derived from the Spanish filibustero meaning 'pirate'. While we may not want to entirely eliminate this kind of piracy, it does seem clear that the Democratic Senate should consider changes to make filibusters less commonplace in the next session of congress than it has been in the current one.