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At the end of 2012 we were hearing a lot of noises about filibuster reform, remember? Noise from liberal pundits, noise in the liberal press, noise from our newly elected insurgent liberal senators. What happened to all the noise? The war cry is sounding more like a whimper lately.
Is the silence a signal? Is the issue dead – again? If so, expect another season of partisan gridlock, political dysfunction, and rising public discontent.
According to the Supreme Court ruling in United States v. Ballin (1892), changes to Senate rules can be made by a simple majority, but only on the first day of each session. Like most everything that happens in Washington, D.C., what you see (or think you see) is not necessarily what you get. To wit: Harry Reid, the sad-sack Senate majority leader is using a parliamentary tactic that shelves rule changes indefinitely but suspends a sword of Damocles over the Republicans. Under Reid's rule, each new day is still being considered as the “first day” of the new Congress so the rules can be changed at any time by a simple majority vote. Leave it to the highest rule-making body in America to f*@% with the rules!
Here's writer, George Packer ("Senatus Decadens", The New Yorker, 1/4/13) on the very day when what might have been – namely, the long-overdue death and joyful burial of the filibuster – wasn't: "Several proposals are circulating. The most intriguing is the one introduced by Senator Jeff Merkley of Oregon (the same Jeff Merkley who told me, back in 2010 when I was writing about the Senate, that he winces every time he hears the phrase 'world’s greatest deliberative body'”). [Senator] Merkley would simply require filibusterers to be present on the Senate floor and speaking, just like Jimmy Stewart or Strom Thurmond. No more waivers, no more silent filibusters, the kind that take place multiple times every legislative week. (The Senate has sunk so low that there’s a nostalgia for the good old days when southern senators used to stand and read from the phone book for days on end…in order to block civil-rights legislation.)"
That's it? That's the "most intriguing" filibuster reform proposal being floated in the Senate? Uh huh.
Congress met on January 3 and (surprise!) the issue of filibuster reform was conspicuously absent. But does that mean it's too late, that 2013 is going to be a grim replay of the gridlock we've come to expect; a permanent procedural paralysis that condemns the country to a fate "the people" of no other self-respecting republic in the world would tolerate? Not necessarily. Read on...
Who really gives a fig about the Senate's rules? That's just dull procedure, right?
Wrong. For any serious deliberative body the rules of order are the gateway – or roadblock – to policy. The U.S. Senate, however, has taken this principle to a new level, one so low that no light can ever reach it, a place where one rule trumps all the others. Inference: the Senate isn't serious.
If the first day of each new session of Congress really is the only time Senate rules can be changed it would undeniably be the day that can make or break each and every national election. It is (or would be) a particularly crucial day in the life of a dysfunctional republic which will (would) continue to be dysfunctional so long as the Senate neglects to change the most idiotic, anti-democratic rule ever to enter the addled brain of a bibulous legislator, namely the filibuster.
Typically, on the first day the pre-existing rules of the new session are adopted in part or in full by a simple majority vote. In other words, rules do not automatically continue from one session to the next. On this day, the Senate can abolish the filibuster or place strictures on its use and abuse – what rightwing extremists, who insist (against all logic and evidence) that a rule once made remains in force forever, ludicrously refer to as the "nuclear option". In Congress, however, the definition of "forever" (like "first day") is purely a matter of political convenience, not semantics or moral conviction, so anything and everything could change if and when the Tea Party caucus, for example, or some other lunatic cabal takes control.
The Democratic majority in the Senate can abolish the filibuster at any time, but there is no indication that so "radical" a move is being seriously considered. As noted earlier, the insurgent position in the Senate, the one proposed by Senator Merkley of Oregon and supported by several other self-professed populists, including Elizabeth Warren, is to require a filibuster-bent senator to be present and babbling in order to do so.
Present. As in not absent. In other words, if you get elected to the U.S. Senate and you want to shut down the government or do something similarly wicked you just have to show up! That's a sign of the times, folks; of the culture of corruption and cynicism that now poisons our public life and pervades Congress; of the decay and decline at the core of the body politic. You know, the one founded on the principle of majority rule.
The Senate in its wisdom not only allows its members to thwart the will of the majority with impunity but makes it super-convenient for the heirs of Strom to obstruct the business of the most powerful legislative body in the land. They don't even have to show up for "work" to do it.
As things stand, a senator can prevent a proposed bill (maybe to raise the debt ceiling or fund disaster relief for victims of Hurricane Sandy) from coming to a vote while, say, cheating on his wife in a secret hideaway across Key Bridge in Rosslyn or sitting in a bar in Key West. Welcome to Fantasy Land USA, the land of the "silent filibuster".
So here's where things stand. The most far-reaching change the reformists in the Senate can get behind is a "reform" that would require a latterday Strom Thurmond (Mitch McConnell?) or some other Senate blowhard (Jerry Moran, Ted Cruz, James Inhofe, among others, come to mind) to be present and blowing. You wingnuts want to make a mockery of majority rule? You want to subvert the election results? Sabotage the economy? Shut down the government? No problem. But don't think you can get away with playing hooky. We're the Democrats, we won, and we're in charge. This time around things are going to be different; this time around if you want to walk all over us and trample on the Constitution, fine!, but you'll have to come to Washington to do it. Take that!!
It's clearly not too late for the Senate to change the rules. The tattered old Constitution says nothing about the filibuster. The hang-up is political, not legal.
Let's be honest: Democrats in the Senate don't want to abolish the filibuster any more than Republicans and they're using filibuster reform to camouflage this fact. Oh, they'd like to get some much-needed reform bills passed; it would make them look good and help them get re-elected. But they can imagine a time when the Republicans will be in the majority and then what? Without the filibuster what will happen to the country? It's a scare tactic, pure and simple.
Ask yourself this: What has happened to the country with the filibuster?
Senate Democrats would do well to consider what will happen to them if they don't get something done in the next two years. If they don't do right by the people for a change (they've done quite enough for the plutocrats). If things look no better in 2014 than they did in 2012. If they lose the next election and the rightwing extremists who control the Republican party abolish the filibuster.
Let's send a message to the Democrats in the Senate. Let's tell 'em this: A lot of us out here in the real America (aka the electorate) have totally given up on the Republicans, but that doesn't mean you can count on getting our votes. You think we have nowhere else to go, but you're wrong. The so-called silent filibuster is a farce, dear senators, a kind of metaphor for the feckless assembly of which you are a part. If you don't kill the filibuster you'll continue to get little or nothing accomplished, we'll continue to pay the price, and the nation will continue to slide deeper into recession, debt, and disgrace. And the next time an election day rolls around we, the voters, just might stage a "silent filibuster" of our own – by staying home. If that happens, we'll all be losers. But you'll be the biggest losers of all.