The White House declared yesterday that it was "frustrated" by the Senate's lethargic pace in confirming the President's executive and judicial nominees. The central culprit is the filibuster, which requires sixty senators to end debate.
The filibuster was the legislative mascot of the Aughts. In the past decade, senators filibustered more frequently than ever before. The threat of filibusters will likely grow in the Teens, when Democrats will probably lose Senate seats, as signaled by Senators Dodd and Dorgan's recent decisions to retire. In response to the routine invocation of the filibuster, some commentators have proposed that Senate Majority Leader Harry Reid undertake an effort to scrap the filibuster completely (a tactic the Democrats once dubbed the "nuclear option").
They're wrong. Senator Reid should not get rid of the filibuster: He should bring it back. What we have today is a cheap and easy filibuster-lite; Senator Reid should reestablish the real thing.
Traditionally, senators had to physically speak on the Senate floor to sustain a filibuster. Filibusters were costly and dramatic. They truly tied up the Senate and the individuals undertaking them. Members of both parties had to be present during a traditional filibuster, the majority for quorum calls, the minority to sustain the ongoing discussion. Senator Reid no doubt remembers these traditional procedures vividly; he filibustered on the floor of the Senate in 2003, against judicial nominees of President George W. Bush.
However, Senator Reid's 2003 filibuster was the last of its kind. In the Aughts, the modern filibuster fully emerged; it requires no real action or sacrifice by senators. In recent times, Senators merely notify the Majority Leader of an intent to filibuster, and the Majority Leader delays further action unless he has sixty votes.
The current filibuster is no longer a filibuster. It's a ritual dance, a parliamentary Potemkin village.
Like any other good, the filibuster is subject to the ironclad laws of economics: the lower the price, the higher the consumption. The filibuster is no different from TVs, cell phones, and dishwashers. The cheaper it gets, the more it is consumed. Senate filibusters used to require large amounts of time, energy, and dedication. Now they are the legislative equivalent of a Wal-Mart product, available at everyday low prices. The result has, unsurprisingly, been the universality of the modern filibuster, which requires no real commitment but the lifting of a senator's finger.
To end legislative gridlock, Senator Reid should increase the cost of the filibuster, restoring the filibuster to its traditional status as a rare and elite commodity. Senator Reid can do this by forcing filibustering Senators to hold the floor and speak. This will not be easy. The Democrats must be available for quorum calls in the Senate, which means that senators will have to show up in the chamber when called.
However, restoring the cost of filibustering will have positive effects for both parties. For the Republicans, the traditional filibuster will force them to prioritize their battles, and will focus the public's attention on the nominations and legislative proposals they truly and intensely oppose. For Democrats, under a return to the traditional, costly filibuster, the number of filibusters will fall. If the country is with the Democrats, the filibustering Republicans will look like obstructionist opportunists.
Moreover, a return to the classic filibuster would force Senate Democrats to fight for the President's nominations. Right now, filibusters happen in the darkness. The public does not know how many filibusters are occurring. Nominations languish on the back burner indefinitely. However, if the Republicans were required to actually filibuster on the floor of the Senate, Democrats would be forced to mobilize in response and to defend these nominations openly.
The traditional, costly filibuster is both the historical and international norm. Many other legislatures with filibuster rules, such as the United Kingdom and New Zealand, require filibustering members to actually filibuster, rather than merely state their intent to do so.
In the United States, the filibuster has become the opposition's free lunch. Senate Republicans rationally consume as much of the filibuster as possible. To make the Senate work again, Senator Reid should take away filibuster-lite and bring back the real deal.
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