Whenever the filibuster is brought up, there is a mythical and tangible image that immediately comes to mind. The mythical image is Frank Capra's Mr. Smith goes to Washington.
The young naïve Jefferson Smith who refused to be a stooge for the political machine holds the Senate floor to fight corruption until he collapses from complete exhaustion.
The tangible image is South Carolina Sen. Strom Thurmond, who held the Senate floor for a record 24 hours and 18 minutes. Thurmond's efforts delayed the Senate vote on the Civil Rights Act of 1957. Thurmond insinuated that the bill, which would ensure that black voters would have ready access to polling booths, was unconstitutional and tantamount to "cruel and unusual punishment."
But neither the mythical image of Smith nor the tangible image of Thurmond accurately portrays the contemporary use of the Senate filibuster. Rule 22 allows for an "invisible" filibuster in that the minority need only state their intention to filibuster.
Rule 22, as it has been applied recently, places the majority as subservient to the will of the minority. Consider a sampling of bills that had majority support but could not be debated during the past four years:
• Paycheck Fairness Act, legislation that would ensure men and women who do equal work receive equal pay had 52 votes.
• Disclosure Act, which banned U.S. corporations controlled by foreign governments from influencing election outcomes through the use of campaign contributions had 59 votes.
• Bring Jobs Home Act, which would have given tax incentives to companies that bring jobs back to the United States had 56 votes.
Rule 22 gives the minority the power to hold up existing laws, block judicial appointments, and allows all senators to hold the entire body hostage to extract something that could not be obtained by majority vote.
Use of Rule 22 in this manner becomes a self-fulfilling prophecy. Senators are allowed to hide in the shadows, declaring their intent to filibuster, derail bills that have majority support, and then go on television bemoaning the president's inability to lead.
It now appears a bipartisan agreement has been reached on modest reforms to the filibuster. Lawmakers would end the use of a procedural tactic that forces the majority party to find 60 votes to bring a bill to the floor, which often kills it before debate begins.
This is certainly a good start; any debate that diminishes the current dysfunction is good for the American people. But to the surprise of almost no one, it doesn't go far enough.
True reform would have included the spirit of Jefferson Smith and Strom Thurmond. The talking filibuster would make the minority accountable for their actions.
If the minority wishes to stall the process, which is their right, they must hold the floor by reciting everything from their reasons for opposition, the Constitution, the book of Leviticus, to their grandmothers biscuit recipe. Let the American people see how the process is being derailed.
Would there be 41 senators voting to support the aforementioned process if it were televised on C-SPAN? The talking filibuster increases public accountability if the minority wishes to obstruct the process.
Elections have consequences; there is a reason a party is in the minority. But politics is cyclical.
Those in the minority will once again return to the majority; and it is doubtful they will support the current process, even with its new reforms.
But the failure to institute the talking filibuster was a loss opportunity to remove a layer of the "shirts and skins" mentality that is pervasive in our politics, where right is predetermined by political allegiance.
Regardless of one's political perspective, the people's business is dependent on discussion, debate, and ultimately a vote. It has no room for unaccountable obstruction.