THE BLOG
03/18/2010 05:12 am ET | Updated May 25, 2011

Bring Back the Cots! The Filibuster and Health Care Reform

In a recent interview on Fox News, Senator Joseph Lieberman threatened to derail health care legislation, asserting that "as a matter of conscience, if proposed Senate legislation includes a public option, I will not allow the bill to come to a final vote." Note that Senator Lieberman is not simply saying that he will vote no on any such bill, but that he will prevent the majority of his Senate colleagues from even having the opportunity to vote on the issue. That he is able to do so is testimony to the power of the filibuster -- an increasingly common, if poorly understood, Senate procedure that stands in direct contradiction to the principle of majority rule. Yet paradoxically, the filibuster -- a classic device of obstruction -- may turn out to be the unexpected pathway to health care reform.

The term filibuster traces back to the Spanish word filibustero or pirate (itself derived from the Dutch vrijbuiter or freebooter) and refers to the capacity of obstructionist legislators to hijack or "pirate" legislative debate. In today's Senate, the filibuster refers to the ability of a minority of Senators (41 out of 100) to block legislation by threatening endless speechifying. It is not enshrined in the Constitution and could in principle be eliminated at any time by a change in Senate rules. But it is a long-standing tradition with roots dating back to the early nineteenth century, and it has frequently been used to great effect by political minorities committed to frustrating the will of the majority.

Though the filibuster first gained wide public attention in James Stewart's unforgettable portrayal of an idealistic Senator who launches a filibuster against powerful and corrupt interests in Mr. Smith Goes to Washington, the actual history of the filibuster is decidedly less noble. In the twentieth century, the filibuster was repeatedly used by Southern Senators trying to block civil rights legislation; to this day, the record is held by Senator Strom Thurmond, who filibustered against the Civil Rights Act of 1957 for 24 hours and 18 minutes. Seven years later, Southern Senators filibustered for 75 consecutive hours in an unsuccessful attempt to block the Civil Rights Act of 1964.

The filibuster is now such a familiar part of the Senate landscape that its profoundly undemocratic character has escaped public scrutiny. But the filibuster is incompatible with the core principle that in a democracy the will of the majority should prevail. The filibuster falls short of the democratic ideal in at least three ways: (1) It gives a minority of Senators the effective right to block legislation favored by the majority. (2) In practice it gives disproportionate power to Senators from less populous states; in the current Senate, the 40 Republican Senators (all of whom now seem likely to vote in favor of a filibuster) represent just 35 percent of the American population. (3) It allocates power to a minority within a Senate that is itself inherently undemocratic.

By constitutional design, every state has two Senators, regardless of population. What this means in practice, of course, is that California, which has a population of over 36 million, has no more representation in the Senate than Wyoming, with a population of 532,000 -- an absurdity in a democratic society. Not coincidentally, both of California's Senators favor health care reform including the public option, while both of their Wyoming Senate colleagues stand in opposition. And this is part of a larger pattern; of the ten largest states, whose inhabitants together comprise over 54 percent of the nation's population; only 5 of the 20 Senators are Republican and likely to support a filibuster.

Despite its profoundly undemocratic character, the filibuster has become more, not less, common in recent years because of a little-noticed change in Senate practice. Whereas the traditional filibuster required the continuous physical presence of the Senator delivering the marathon speech and a quorum of Senators on the floor (hence the presence of cots for fatigued Senators and the famous story of an aide to Senator Thurmond standing by in the Senate cloakroom with a pail in case the Senator needed to relieve himself), today's Senate requires nothing more than the mere threat of gathering the necessary 41 votes to derail legislation (60 votes are necessary for "cloture" or the closing of debate).

Not surprisingly, filibusters have become more common than ever before in American history (from 6 votes on cloture in 1967-1968, 13 in 1977-1978, 43 in 1987-1988, 53 in 1997-1998, and 112 in 2007-2008), with the consequence of growing legislative paralysis. The filibuster has become routine, with devastating effects on the Senate's ability to legislate.

With health care now consuming more than one-sixth of America's GDP and a recent Harvard study estimating that 45,000 Americans die each year from lack of health insurance, the nation can no longer afford this pattern of legislative deadlock. The solution is for Senate Majority Leader Harry Reid to exercise his right to restore the traditional filibuster. Were Senator Reid to do this, the opponents of health care reform would have to make their arguments against permitting the majority to vote in full public view.

The outcome of such a public debate is by no means preordained. But it would take a matter of urgent public policy import out of the backrooms of the Senate and into the public arena. Democrats who favor health care reform should not shrink from an old-fashioned filibuster, but welcome it. And if Senator Lieberman and his colleagues wish to argue their case in the court of public opinion, then by all means let them do so. For the result may be not only the end of an untenable status quo in health care, but also the weakening of an archaic Senate tradition that has debilitated the legislative process. Bring back the cots!