THE BLOG

The Filibuster: So Much for the "Gentlemen's Agreement"

03/10/2011 11:33 am ET | Updated May 25, 2011

Two months into the 112th Congress, it's clear that we're going to need much more than a "gentlemen's agreement" to fix the U.S. Senate.

The deal that Majority Leader Harry Reid and Republican Leader Mitch McConnell promised would break the gridlock of 2010 is as good as dead, just five weeks after it was announced. A band of Republican senators has served notice that it's prepared to use, or abuse, the Senate's filibuster rule to block any legislation that doesn't meet its standards.

The ultimatum from this new "gang of eight" -- Tom Coburn of Oklahoma, John McCain of Arizona, Jim DeMint of South Carolina, Rand Paul of Kentucky, Kelly Ayotte of New Hampshire, John Ensign of Nevada, Mike Lee of Utah and Ron Johnson of Wisconsin -- was spelled out in a two-page letter released but little-noticed last week. Among their demands:

• Any proposal to increase spending or create a new government agency must include corresponding spending cuts somewhere else in the federal establishment.

• Any bill creating a new government agency must have a "sunset" date when the agency will die unless Congress acts to extend it.

• The text of every bill and a formal estimate of its cost must be available to the public for three full days before the legislation is passed.

• Any bill creating a new program that "replicates" an existing government function must consolidate the new and existing functions or eliminate the existing programs.

• All bills must have a "clear and obvious" connection to the powers delegated to Congress by the Constitution.

It's fine for senators to lay out their personal criteria for support, or opposition, to any bill. And there's a lot to be said in favor of at least some of the gang of eight's ideas. As a former congressman, I particularly like their suggestion that no bill should be passed unless its text and a formal cost estimate have been available for public view online for at least three days. Too much legislation now hits the floor before everyone in the Congress, much less the public at large, has a chance to read and digest it.

What's troubling is the senators' vow to use the filibuster to choke off debate and block any action on bills that don't meet their standards. Rather than let legislation come to the floor, where its strengths and weaknesses can be aired and amendments can be adopted, the Republicans vow to filibuster to shut down the legislative process altogether.

This is obstructionism, unworthy of what its admirers describe as the "world's greatest legislative body." It's also exactly what the Reid-McConnell "gentlemen's agreement" was supposed to prevent. In return for Reid's pledge not to manipulate the rules to block Republican amendments, McConnell promised that GOP senators would limit their filibusters, allowing most legislation to at least come to the floor and be debated.

When the Senate convened in January, Common Cause and other government reform groups urged adoption of new rules to promote full and fair debate, protecting the minority's right to air its views and propose amendments to legislation on the floor but allowing the majority ultimately to work its will. Several reform-minded senators, including Tom Harkin, D-Ia., Tom Udall, D-NM, and Jeff Merkley, D-Or., offered plans to break the Senate's gridlock. Their efforts were pre-empted by the Reid-McConnell "gentlemen's agreement."

Now, with the new Gang of Eight all but guaranteeing a new round of filibusters, reformers will be rethinking their strategy. Because the Senate has adopted its rules for the 112th Congress, a direct attempt now to change or wipe out the filibuster rule would require an all-but-impossible 67 votes. Alternatives are available however. A Harry Truman-style campaign in 2012 against the "Do Nothing Congress" might rouse voters and sufficiently embarrass enough senators to force a change in the next Congress. And before that, someone might drag the Senate into federal court with a constitutional lawsuit against the filibuster. The plaintiff there would have a strong case indeed.