Once the Senate gets back from its much-needed break to deal with little issues like the economic security of the country, it really should turn to one of the reasons the once-grand institution exists as exalted only in the minds of its members.
That reason, of course, is the filibuster, that tactic that the minority uses to prevent the majority from passing anything. The problem is readily apparent -- there are too many filibusters. For the solution, the Senate should turn to one of the most trusted institutions in the U.S. -- the National Football League (NFL -- a trademark of the National Football League -- used without permission, but for a good cause, trust me).
The goal of the filibuster is to prevent the Senate from voting on something -- legislation, a nomination, even a parliamentary motion. In days gone by, senators were required to be on the Senate floor speaking to hold up debate. This led to marathons from the likes of former Senators Strom Thurmond (D-SC), Al D'Amato (R-NY) and Huey Long (D-LA), involving the reading of recipes for fried oysters and the District of Columbia phone book.
Modern filibusters have their moments also and none could top the spectacle of Senate Republican Leader Mitch McConnell (KY) filibustering his own bill. Now that just about everything in the Senate needs 60 votes to pass, -- the number required to break a filibuster -- work has slowed to a crawl -- which after all is the goal of Republicans trying to slow down the Obama agenda.
The filibuster has become more refined over time. These days, senators don't actually have to do anything to carry one out. They simply have to threaten to do it. It's sort of like Tony Soprano sending Paulie Walnuts to have a chat with a restaurant owner. "It would be a shame if something happened," Paulie might say, and the restaurant owner, thinking it over, might give him some cash. There was no firebombing, not even outright extortion, only the implication of what would come. So when you see charts of the skyrocketing number of filibusters by Republicans since Barack Obama became president and the Democrats took a majority in the Senate, a more than doubling of what came before, think of what's really going on behind the scenes.
Some senators proposed some good ideas for reform. Democratic Sens. Jeff Merkley (OR), Tom Udall (AZ) and Tom Harkin (IA) proposed a measure that would force senators to speak on the floor as in bygone days, while prohibiting filibusters on certain procedural motions (going to conference) and cut back debate on items like nominations. That last one is necessary because even when a filibuster is "broken," Senate rules still allow another 30 hours of debate.
Predictably, the Senate didn't go for real reform. It went for a thin gruel version which will allow most of today's problems to continue.
So hold that thought for a moment and think of something more fun -- football. Imagine a game in which coaches had unlimited timeouts. Today's games, which can go on for three hours or more, as replay challenges, TV timeouts, players going out of bounds, incomplete passes and officials discussing penalties drag out what is, on the clock, a one-hour game with halftime.
If there were unlimited timeouts, the games would go on forever, like those cricket matches, called "tests," that go on for hours and hours or even days and days. So the NFL limits the number of timeouts. Teams get three per half. Yes, there are some exceptions, and we will get to the big one later. And yes, the NFL has all kinds of rules, but so does the Senate. Let's keep this simple.
With those rules (and similar rules in other levels of the game), the timeout becomes an essential part of strategy. A wrong decision on a timeout -- either calling one or not calling one -- can determine the outcome of a game. Similarly, a coach deciding whether to challenge a referee's call on replay has to judge whether the potential loss of a timeout is worth it. "Clock management," as the term of art calls it, is essential.
Now we apply clock management to the U.S. Senate. Following the general NFL outlines, the minority party will get a certain number of filibusters over a session of a Congress. This year is the first session of the 113th Congress. Next year will be the second session of the 113th Congress. Finding the right number is always the hard part. My preference would be, say, 10 -- five for each session. As a more realistic goal, let's say 40, a number more in keeping with traditional use of the filibuster. They would be allocated 20 for each session and wouldn't carry over from the first session to the second. At the end of a Congress, you start over. In January 2015, the minority party would have its full allocation of filibusters. Unlike the proposed reforms, which would set out which types of bill or motions the filibuster would apply to, under this plan the filibuster could apply to anything -- a nomination, an amendment, a bill, a procedural motion.
In order for this plan to go through, senators would have to announce publicly their filibusters. Any mention of a 60-vote threshold is considered to be a filibuster and will count against the total the party has left.
One of the great parts of the NFL's timeout rule is the way it applies to replay challenges. If a coach challenges an official's call and loses the, his team loses a timeout. If the challenge ends up in a reversed call, his team does not have a timeout taken away.
My plan puts a little twist on the NFL rule, because we don't want to reward a successful filibuster with the chance to do another one. In the Senate version, if the filibuster is successful, then the party loses one of its remaining filibusters. After all, the idea is to get things moving, not keep them stopped.
With those rules in place, the Senate floor tacticians will have to think carefully whether they want to try to block just anything, or to save it for something really important -- and suffer the consequences if they win.