01/15/2013 11:40 am ET Updated Mar 17, 2013

January's Most Important Vote: The Senate Vote to Fix the Filibuster

While media attention has been focused on the "fiscal cliff," the January 1st vote and the upcoming debt ceiling battle, a more important vote is scheduled for the Senate next week: the reform of the Senate filibuster rules.

After all, the fiscal cliff "just" involved the budget. Senate filibusters now alter or block nearly every piece of legislation the Senate considers.

The need for reform is obvious: the explosion of filibusters (more than 300 during the past 6 years -- as compared to, say, one in the six years that Lyndon Johnson ran the Senate). The legislation that could never come to the floor (ex. The Dream Act for undocumented children, The Disclosure Act to require reporting of big political contributors to independent groups). And the legislation that has been weakened in order to get to 60 votes (including Obamacare).

Effectively, there is now a requirement that legislation (with exceptions involving the budget) can only pass the Senate with a 60 vote majority.

The reform proposal of Democratic Senators Jeff Merkley (OR), Tom Harkin (IA) and Tom Udall (NM) would limit the number of filibusters on any single piece of legislation. No more blocking motions to bring a bill to the floor or motions to start the conference committee process.

And, it would require that those asking the Senate to spend additional time debating the bill... actually debate. If a senator wants to insist that the Senate have 60 votes to end debate, there should at least be a debate going on.

The proposal is not perfect. So far, it does not include shifting the burden to keep the filibuster going onto those obstructing the Senate. Today, 60 votes are required to cut off the filibuster. In a more ideal world, those filibustering would be required to obtain 41 votes to keep it going. Why should the burden be on the majority to drag senators out of the hospital to vote for cloture, as was done with Ted Kennedy and Robert Byrd?

And an even more ideal reform would start to introduce some democracy into the Senate to offset its two senators per state structure. Perhaps to keep a filibuster going, you would need to represent 41 percent of the American people, not just 41 percent of states. But this isn't going to happen until Democrats start laying some ground work for it.

Still, the current proposal is a major step forward.

Senate Majority Leader Harry Reid has agreed to consider proposed reforms to the Senate's filibuster rules on the first day of the new session -- and has manipulated that date by keeping the Senate in recess rather than adjournment.

This is critical. Some believe that the Constitution only permits Senate rules to be changed by a majority (and not a supermajority) of votes on the first day of the Senate session.

Many Senators believe that rules can only be changed permanently with 67 votes. But some are now suggesting that a "Standing Order" can dictate the rules for a session with only 60 votes. This belief underlies a new reform proposal being sponsored by Senators John McCain (R-AZ) and Carl Levin (D-MI).

The McCain-Levin proposal would give the Senate majority leader two options to move to new business. But both are dependent upon getting agreement with the Minority Leader. The Minority Leader appeared more cooperative at the beginning of the last Congress and we see how that went.

And McCain-Levin does little to make it more difficult for senators to block final votes on legislation and nominees. No holding the floor, no "talking filibuster," would be required.

While the substance is different, the real conflict between these alternatives is, appropriately, over procedure. McCain has asserted that the Senate has never changed its rules with 51 votes (also known as the "nuclear" or "constitutional" option).

But that's not the case. Senator Robert Byrd (D-WV) was able to effect rule changes by majority vote four times when he was majority leader. The first time he did it in 1977 to stop two liberal senators, James Abourezk (D-SD) and Howard Metzenbaum (D-OH), from filibustering the natural gas deregulation legislation after cloture had been invoked.

I should know. I was there, working for Public Citizen's Congress Watch.

McCain also claims to worry about Senate "tradition." Yet, he doesn't require a "talking filibuster" -- even though all filibusters were "talking" until fairly recently. One can argue that filibusters themselves violate Senate tradition -- as supermajority rule was specifically rejected by our founders. But, silent filibusters are an obvious challenge to Senate tradition.

So, why are liberals like Carl Levin supporting McCain? Because they are concerned what will happen when the Democrats again return to the minority, as one day they surely will.

Should liberals give up an essential procedural defense against conservative legislation?

Yes, as long as the rules don't eliminate a reasonable opportunity to filibuster -- and these don't.

The fact is: liberals need these rules more than conservatives do.

The reason is simple: Conservatives believe that the marketplace maximizes human welfare. Socialists believe the government does. Liberals believe it's the interaction between the government and the marketplace that maximizes human welfare.

So, while both liberals and conservatives share an interest in a well-functioning marketplace, of the two, only liberals require a well-functioning federal government.

In the 1960s, roughly two-thirds of the American people thought the federal government was effective. But after Vietnam, inflation and Watergate, that number dropped by half. Since then, it has recovered a bit and bounces between 35-45 percent.

And during this period, liberals have struggled to retain power.

So, the more liberals can do to make government effective -- even if they will occasionally be on the losing end -- they should do. The Merkley/Harkin/Udall filibuster reform is one step.

The fact is, if John McCain is worried about the "nuclear" option, there's an easy solution. He should round up 4 other Republicans (Susan Collins (ME), Lamar Alexander and Bob Corker (TN), and Mark Kirk (IL) are possibilities) and support a Standing Order that would have the same elements as the talking filibuster proposal.

Then Senate tradition would be maintained in every critical respect. And McCain would have exhibited that he knows when a Senate action is truly important.

A wide range of interests, including business groups like the American Sustainable Business Council, are not waiting for John McCain to come to this realization. If you think filibuster reform is important, let your senator know.