Senator Bernie Sanders, I-Vermont. (AP Photo/Rich Pedroncelli)
"If you haven't got men who have learned to tell human rights from a punch in the nose..."
-- Mr. Smith Goes to Washington , 1939
The filibuster should not be eliminated.
It should be restored.
This is the great takeaway from the muddled debate over how to restore a measure of functionality to the US Senate.
For the past four years the Senate has made a mockery of the concept of majority rule. Though Democrats have held a clear majority in the chamber, they have been blocked at almost every turn by Republicans who have used what is referred to as the "filibuster" to prevent consideration of legislation, nominations and just about everything else the President Obama and the Democrats dare to propose.
But the Republicans have not used the filibuster as Americans recognize it.
Rather they have used a filibuster fantasy to impose the will of the minority on the majority.
The filibuster has no constitutional or statutory grounding. It is established and defined by Senate rules.
Historically, the filibuster existed as a protection against the silencing of the minority. Under the rules of the Senate, a member or group of members who did not have the votes to prevent approval of a piece of legislation could demand to be heard in opposition. Ideally, the traditional theory went, this avenue of dissent could prevent a rush to judgment.
But, in recent years, the filibuster has not been used to raise voices of dissent. Instead, it has been used to block votes on critical pieces of legislation, to make it harder for the president to advance even the most popular proposals and to undermine the basic premises of the principle of advice and consent.
What to do? Bring back the filibuster as it has historically been understood.
This, to some extent, is what Senate Majority Leader Harry Reid, D-Nevada, is preparing to propose. Noting that there have been 386 Republican-led filibusters during his almost six years as majority leader, Reid said Monday: "We can't continue like this."
Speaking of the Republicans, the Democratic leader says, "They have made it an almost impossible task to get things done."
Reid, whose incoming caucus is larger and more supportive of filibuster reform than the one he led in the last Senate, has the option of asking senators to set new rules at the opening of the coming session. And indications are that he is preparing to do just that, seeking an end to the secretive and unaccountable abuses of the filibuster on motions to proceed. This would allow the Senate to take up legislation or nominations. At the same time, Reid is said to be seriously considering a requirement that senators appear on the floor of the Senate and argue their positions -- as senators used to do, and as Americans saw Jimmy Stewart do in Mr. Smith Goes to Washington.
What Reid is considering is not an attack on the filibuster. It is a renewal of the filibuster as it was portrayed in the classic 1939 film. Senators would still be free to go to the floor to keep debates about major bills and nominations open. They could launch filibusters to prevent the end of debate on a matter of consequence. They could use filibusters to block a final vote on a piece of legislation.
That's the way to understand filibuster reform.
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