04/19/2010 05:12 am ET Updated May 25, 2011

Should the Senate Go Nuclear?

Ask any congressional historian and they will probably tell you that Congress has known gridlock before; with the isolationist filibusters prior to WW I, during the Harry Truman administration and the ``Do Nothing Congress'', during the contentious Civil Rights era of the 1950's and 1960's; during the post-Watergate era, and during Bill Clinton's years when the White House battled with Newt Gingrich and his ``Contract with America''.

But the gridlock that has crippled the current 111th Congress has not been seen in some time. ``I think it is fair to say that there has not been a time in over 100 years where Congress has faced as systematic a problem with minority obstruction, Eric Schickler, Professor of Political Science at the University of California, Berkeley and co-author of ``Filibuster: Obstruction and Lawmaking in the U.S. Senate'', writes through an email.

Schickler believes Congress hasn't been this divided since the Civil War era, when the nation was coming apart at the seams and the House of Representatives was deadlocked in electing a Speaker of the House.

Political analysts have been weighing in with accelerated fervor on how the frequent use of the filibuster, once a practical tool for the minority party, has been abused by both parties in the last four to five years to the point that Congress has become dysfunctional.

The 111th Congress is on pace be the second highest in cloture votes right behind the previous Congress (2007-2008), which recorded a staggering 112 cloture votes. The only way the Senate can overcome a filibuster is by a cloture vote, which if passed, cuts off debate, allowing the chamber to proceed with a motion.

The Senate first adopted a cloture vote in 1917 on legislation only; and in 1948 it extended the rule to allow cloture votes on executive nominations. Another change to the cloture rule was enacted in 1975, when the number required to invoke cloture was changed from two-thirds of the membership to three-fifths or 60 votes.

Even with this privilege, a cloture vote didn't take place until 1968, when the Senate rejected a cloture vote on Lyndon Johnson's nomination of Associate Justice Abe Fortas to the U.S. Supreme Court. Soon after the vote, Johnson withdrew Fortas' name.

And before the real trouble began prior to the 103rd Congress (1993-1994), cloture was only invoked three times. Since that time, however, cloture votes have gone through the roof.

According to the Congressional Research Service, cloture was sought on 12 nominations in the 103rd Congress; (1993-1994), five in the 107th (2001-2002), 14 in the 108th (2003-2004) and 18 in the 109th Congress (2005-2006).

Senator Tom Harkin, the junior Senator from Iowa, told the Washington Post, cloture votes have increased to about 75 percent in the last 15 years. Already, the 111th Congress has held more than 40 cloture votes and the night is still young.

So with Congress immobilized and bipartisanship apparently a foreign enemy, is there a way out of this stalemate and climate of inertia?

Yes; but it's not easy, it never is in Congress.

Senate historian Don Ritchie tells me the Senate makes its own rules. But while it may only take 60 votes to invoke cloture, it takes 67 votes to make any rule changes in the Senate. ``That means, Ritchie said, that changes in the formal rules require broad bipartisan consensus. ''

And the rule change being advanced is the so-called ``nuclear option'', which means an option that would bypass the traditional Senate rules by allowing the chamber to vote on a nominee or a piece of legislation by a majority vote (51) instead of the super-majority vote (60).

The ``nuclear option'' is nothing new either. Senate Majority Leader Bill Frist, Republican from Tennessee, during the 108th Congress, annoyed that President George W. Bush's nominations were being stalled, introduced a resolution (S.Res. 138) that proposed that executive and judicial nominees would receive a floor vote and end filibusters. After the ``Gang of 14'' (seven Republicans, seven Democrats) came up with a compromise, however, the nuclear option was dropped.

Besides the procedural jujitsu, there are other problems with the filibuster rule.

Professor Schickler is of the opinion that the filibuster rule is a system most senators are a little too comfortable with, since it gives them more prominence and a feeling of power, knowing they can block a nominee or an important piece of legislation or get a pet project passed for his or her home state. ``The problem, Schickler maintains, is that what works for the 100 individual senators ends up dysfunctional for the country as a whole.''

Yet another bottleneck often cited with the current system is the requirement for unanimous vote before it gets to the floor; meaning, only a few senators can hold up a floor vote from occurring.

Michael J. Gerhardt, Professor in Constitutional Law at the University of North Carolina Law School, thinks there should be more accountability and transparency, which would be easily realized if only Democrats forced more floor votes and Republicans stopped allowing their colleagues to obstruct floor votes.

Gerhardt, for example, would like to see all the names of lawmakers who are obstructing final judgment on many of these issues. ``These folks need to explain to the American people -- and the people of their States -- why obstruction is their preferred policy on health care and other important matters.''

I continue to be amazed why it took the election of Scott Brown in Massachusetts before the Obama administration started pressing for jobs, jobs, and more jobs.

Maybe we shouldn't be surprised, then, that we will more than likely have to wait for voters to boot these obstructionist incumbents out of office this November, before Congress finally gets around to passing some bills.

-Bill Lucey