Set your watches to noon on Jan. 5. That’s the first minute of the first hour of the first day of the new congressional session. And that is when the U.S. Senate can change its rules by simple majority, 51 votes, rather the 67 needed otherwise.
A large group of Democratic senators, frustrated by the chamber’s delay and obstruction, are preparing to use that brief window to challenge the filibuster. It should get interesting.
The Senate, long styled as the world’s greatest deliberative body, much of the time could compete for most dysfunctional. When we see a burst of activity, as in this productive lame-duck session, it’s easy to think the pace has picked up. Only next to a snail does a turtle look like Secretariat.
Consider: The 2009-2010 Congress saw 136 cloture motions -- attempts to assemble 60 votes to break a filibuster -- compared with 68 in 2005-2006 and just 54 in the half-century from 1921 to 1971.
Compounding the overuse of the filibuster is the practice of secret “holds.” By tradition, any senator can quietly put his or her thumb on a pending measure, often a nomination offered by the president. These holds can pitch nominees into Kafkaesque limbo. As of last month, 150 nominees awaited votes. Washington insiders know this can cripple the executive branch and keep talented appointees from accepting government jobs.
Judicial nominations have reached a crisis point. The Alliance for Justice reports that there are 111 vacancies and that President Barack Obama has won confirmation of only 60 judges, compared with 100 for George W. Bush and 126 for Bill Clinton at the same point in their terms.
Filibusters and holds have had a profound effect on the work of Congress. The Senate hasn’t passed any of the 12 appropriations bills for 2011. A proposal to require better disclosure of spending on political advertising was backed by 59 senators, yet failed to become law.
Is this problem new? After all, we remember Jimmy Stewart holding forth with a filibuster on the Senate floor in “Mr. Smith Goes to Washington” (1939).
Mr. Smith’s Senate no longer exists. Long governed by arcane rules and a tradition of unlimited debate, the chamber has lost the genteel bipartisan ethos that made it possible to still get things done.
The filibuster once was rare, reserved for epochal battles, such as when senators talked all night, reading the phone book, to block civil-rights legislation. Major laws such as the one creating Medicare avoided a filibuster. Now, in a time of rigid party discipline conveyed by tweeted talking points, rules crafted for a gentler time are used to bring Congress to a halt.
This imposes a supermajority requirement unprecedented in U.S. history. We routinely slip into saying, “The president needs 60 votes” in the Senate to win passage of this or that bill. If high-school students say on a test that the answer is 51, are they right or wrong?
Sixty isn’t what America’s founders had in mind. As Alexander Hamilton noted, requiring a supermajority substitutes “the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”
The Constitution makes clear there are seven times when a supermajority is needed. Treaties, for example, need approval by two-thirds of the Senate. Normal legislation is supposed to be passed by a majority.
Defenders of the filibuster cite George Washington, who likened the Senate to a saucer that cools the hot coffee, presumably poured by the tempestuous House. Be that as it may, the Senate under current practice throws the coffee in the trash. That can’t be what our first president had in mind.
Some senators, especially younger ones, share the frustration.
Senator Jeff Merkley, an Oregon Democrat who joined the Senate in January 2009, has proposed limits on the use of the filibuster. One of his ideas: filibustering senators should have to come out of their offices and actually hold forth on the Senate floor. Last week, all 53 Democratic senators returning in 2011 signed a letter to Majority Leader Harry Reid demanding action on these ideas.
This is the perfect time for reform. Democrats will have the majority in the next Senate. Republicans, confident after the last election, may hold the majority starting in 2013. We don’t know who will be president then, either. Rules changes today could make it harder for liberals to obstruct conservative policies and nominees.
Changing the Rules
Usually, it takes 67 votes to change Senate rules. (Says who? Senate rules.) But when a new Congress starts, there’s solid precedent to argue that the 67-vote requirement doesn’t apply. As presiding officer of the Senate, two U.S. vice presidents -- Democrat Hubert Humphrey and Republican Richard Nixon -- have ruled that a majority is good enough.
Reid and Vice President Joseph Biden both need to be on board. Robert Caro, in “Master of the Senate,” recalls the high drama in 1957 when Nixon, working with Senate liberals on behalf of civil rights, tried to curb the filibuster at the start of the session -- only to be outwitted by Majority Leader Lyndon Johnson in a scene of senators leaping to their feet, arms flailing, yelling to be recognized.
Biden has said, “No democracy has survived needing a supermajority.” Reid has said, “We are likely to have to make some changes” to the filibuster. So where will they stand on Jan. 5?
Set your clocks -- or at least program your DVRs to C-SPAN. Reality TV doesn’t get any better.
(Michael Waldman, former head speechwriter for President Bill Clinton, is executive director of the Brennan Center for Justice at New York University School of Law and the author of “My Fellow Americans.” The opinions expressed are his own.)
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