Frustrated by the lack of action in Washington after a mandate for change in 2008, liberals and Democrats inside and outside of government have begun to question the Senate filibuster rule, which they attribute to the growing legislative paralysis.

The filibuster (the Dutch word for “pirate”), the process by which Senators can endlessly continue debate on any bill until being cut off by a cloture vote requiring a super-majority, has been part of the Senate rules since the establishment of the body. They used to be available to members of the House as well, until rule changes limited that ability. Senators have been threatening to end the filibuster rule since Henry Clay in 1841, and over time the rule has changed in scope. The cloture vote, allowing a super-majority to end debate, didn’t exist until 1917, and the votes needed to invoke cloture were lowered from 67 to 60 in 1975.

However, while the rules governing the filibuster have arguably loosened, the use of the filibuster has skyrocketed, turning the Senate into a body that needs 60 votes to move anything. This has especially become true since 2007, when the Democrats recaptured the majority. While news reports repeatedly warned Democrats while in the minority that they wouldn’t be able to hold filibusters for political reasons, since 2007 they have become commonplace, with no such media concern-trolling. In the 110th Congress, 70% of major bills were filibustered, as opposed to 8% in the 1960s. Political leaders just didn’t see the filibuster as an impediment a few decades ago.

One rule change, allowing for “dual tracking” of bills, which meant that a filibuster wouldn’t effectively end all pending legislation in the Senate, has really led to the normalizing of the 60-vote super-majority requirement, because it made the filibuster relatively pain-free. In addition, the ideological homogeneity, particularly of the Republican caucus, has made it easier for those members to want to hang together and wield the filibuster as a political tool to deny any changes to the status quo. This of course is easier for a conservative death cult of a party more interested in winning politically than governing.

As the obstructionism has worsened in the Senate – the four agonizing weeks it took for an unemployment insurance bill that eventually won 99-0 on the floor being an example – more and more observers are targeting the filibuster as the main impediment to change, and calling openly for its elimination. This includes CAP blogger Matthew Yglesias, who notes that the filibuster adds another layer of checks and balances onto an already checked and balanced process:

At the end of the day the main problem with a supermajority requirement has little to do with specific partisan or ideological concerns. One simply needs to note that bicameralism, plus an independently elected president, plus the congressional committee syste, plus a fairly robust system of federalism, plus a fairly robust institution of judicial review constitutes a political system that already has a ton of veto points. The main aggregate impact of all this piling-on of veto points upon veto points is to make it easier than it should be for interest groups to block broad-view reforms. Adding a supermajority requirement in the senate on to all of that exacerbates the existing pathologies of the system. It also allows each individual senator to drive a harder bargain in the horse-trading and log-rolling sweepstakes in a manner that rarely serves the public interest. Perhaps most important of all, it tends to undermine democratic accountability by blurring the relationship between election results and policy outcomes—what you want is for election winners to be held responsible for the results, but to do that you can’t let the losers play a major role in shaping policy. Similarly, you should want candidates to be held responsible for their ideas, not to embrace policies with a kind of wink-wink you’ll never get 60 votes for that sub rosa understanding that it’s not meant to be taken seriously.

In addition to people like Yglesias and Washington Post blogger Ezra Klein, the editorial board of The Nation has attacked the Senate rule, saying that the filibuster “is not what democracy looks like.” And Open Left’s Chris Bowers has argued persuasively that a failure to eliminate the filibuster will essentially end any possibility for Democratic governance after 2010, if Republicans pick up a couple Senate seats (which is likely).

More encouraging than bloggers and editorialists arguing for the end of the filibuster is the apparent movement from Democratic politicians. A Senate Democratic Chief of Staff wrote to Josh Marshall blaming the “anti-democratic rules of the Senate” for the difficulty in passing health care. Rep. Alan Grayson (D-FL) has launched a website calling on Harry Reid to “stop Senate stalling” and change the rules, lowering the threshold for cloture to 55 (It’s arguable whether or not Reid can do that, as we’ll see later). Most encouraging is a Democratic member of the Senate, Rhode Island’s Sheldon Whitehouse, openly discussing obstructionism and the filibuster in New York City last week.

I just saw Senator Sheldon Whitehouse speak at a Brennan Center lecture at NYU Law School. Whitehouse is an excellent speaker, a committed defender of the Constitution, and a major badass.

Do you know what he told us? Out of thirty-six weeks in session this year, the United States Senate has had four weeks of working sessions. Four weeks. What happened to the other thirty-two weeks? They were sucked up by Republican filibusters. That’s right: Republican filibusters. Remember the people who hate the filibuster so much that they were willing to “Go nuclear”? Them. There have been ninety filibusters this year and there’s no end in sight. Ninety. I sat there wondering why the Democrats had not gotten this message out to American citizens (because you have to admit that “Republicans have obstructed the United States Senate’s work for thirty-two weeks this year” is a pretty compelling message) when Whitehouse told us that the Democrats have realized that they need to take that message to the people (and that at least some of them are discussing changing the filibuster rules).

How could the filibuster end? Changing Senate rules in the middle of a Congressional session would require 67 votes, under Senate rule 22. I don’t think even the most starry-eyed optimist would consider that to be a possibility. At the beginning of the next session of Congress, the Democrats could potentially change the rule as part of the organizing resolution, which also sets the committee chairs. However, Republicans could filibuster an organizing resolution that made such a change, before the filibuster was abolished.

However, some say that Harry Reid already has the ability to end the filibuster available to him. In the case of health care and most other policies that impact the budget, he could simply use budget reconciliation, a process whereby budget matters can be decided at the end of the year with an up or down vote. Reid’s staff say that reconciliation is rife with problems and would turn the health care bill, for example, into Swiss cheese, breaking it into parts that would rely on the Senate’s parliamentarian to pass muster. David Waldman notes that Senate Democrats could waive the so-called “Byrd rule” (Robert Byrd, by virtue of prominence and longevity, figures into this thing at key points) that mandates what items are germane for reconciliation, and pass whatever they want – but that would require 60 votes as well.

Another possibility is the so-called nuclear option, threatened by then-Majority Leader Bill Frist in 2005 for judicial nominations:

A point of order is a parliamentary motion used to remind the body of its written rules and established precedents, usually when a particular rule or precedent is not being followed. When a senator raises a point of order, the presiding officer of the Senate immediately rules on the validity of the point of order, but this ruling may be appealed and reversed by the whole Senate. Ordinarily, a point of order compels the Senate to follow its rules and precedents; however, the Senate may choose to vote down the point of order. When this occurs, a new precedent is established, and the old rule or precedent no longer governs Senate procedure. Similarly, it is possible to raise a point of order and state that the standard procedure of the Senate is actually different than the current rules and precedents suggest. If this point of order is sustained, a new precedent is established, and it controls Senate procedure thenceforth.

The nuclear option is used in response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator’s point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, “Is the decision of the Chair to stand as the judgment of the Senate?” This is referred to as “appealing from the Chair.” An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer’s ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

Democratic leaders have never threatened the nuclear option themselves, perhaps because of the old saw that they would want the filibuster in place themselves if the GOP regained power. More and more, liberals are seeing that the filibuster is an enemy of governance itself, not a tool that can be used successfully in the minority and should thus be sustained. Making it impossible to move anything in Congress without 60 Senate votes makes it incredibly difficult for the country to deal with its own challenges. It empowers the executive to aggrandize more and more power just to get anything done. It reduces accountability because the party put into power by the majority doesn’t get a chance to implement their agenda. And it’s both an anti-democratic and small-c conservative tactic that helps lock in the status quo.

Chris Bowers has further ideas on how to build a movement to end the filibuster. Those ideas are starting to get some traction, in the wake of unprecedented obstructionism and a realization that the country is suffering from it.

David Dayen

David Dayen