This past spring, Senator Claire McCaskill wrote to me asking for $50 to help elect more Democrats, so we could have a filibuster-proof Senate. Now that Al Franken has finally been declared the sixtieth Democratic senator, her plea may seem moot. But even with Franken in office, we don't have a filibuster-proof Senate. To get to sixty on the Democratic side, we'll still have to cut deals with Democrats like Max Baucus, Ben Nelson and others who cat around as Blue Dogs from vote to vote. Whether or not Senator Arlen Specter is a Democrat, the real Democrats will still have to cut the same deals to get sixty votes.
Maybe we loyal Dems should start sending postcards like the following: "Dear Senator: Why do you keep asking for my money? You've already got the fifty-one votes you need to get rid of the filibuster rule." It's true--McCaskill and her colleagues could get rid of it tomorrow. Then we really would have a Democratic Senate, like our Democratic House.
She won't. The Democratic Senatorial Campaign Committee, which paid for her appeal, won't. They use the filibuster threat to hit us up for money. And as long as they do, you and I will keep on kicking in for a "filibuster-proof" Senate, which, with or without Franken, will never exist. Every Obama initiative will teeter around sixty, only the deal-cutting will go on deeper in the back rooms and be less transparent than before.
In the meantime, playing it straighter than Claude Rains, McCaskill and other Democrats tell us how shocked, yes, shocked they are that this deal-cutting is going on. May I quote her spring letter? "I'm writing to you today because President Obama's agenda is in serious jeopardy..."
It still is, as long as it takes sixty and not fifty-one votes to pass Obama's bills. But no, here's what she says: "Why? Because Republicans in the Senate--the same ones who spent years kowtowing to George W. Bush--are determined to block each and every one of President Obama's initiatives."
But why is that a surprise, if there's a rule that lets forty-one senators block a bill? The surprise to people in other countries is that the Senate, already wildly malapportioned, with two senators from every state no matter how big or small the population, does not observe majority rule. Her next line:
"It's appalling really."
It sure is--the way she and other Democratic senators keep the filibuster in place. But let her go on:
"They're the ones who got us into this mess. Now they want to stand in the way of every positive thing the President tries to do to set things right. I'm sure it frustrates you as much as it does me."
Yes, Senator, it frustrates me. But Democratic senators who let this happen and then ask for my money frustrate me even more.
As a labor lawyer, I have seen the Senate filibuster kill labor law reform--kill the right to join a union, freely and fairly--in 1978 and 1994. And, no doubt, in 2010.
And in the end, all we get is a letter from Senator McCaskill asking for more money. Of course, I know there are all sorts of arguments made for the filibuster. For example: "But the filibuster is part of our country's history, and there's much to be said for respecting our history and tradition." Yes, well, slavery and segregation are also part of our history, and that's what the filibuster was used to defend. I'm all in favor of history and tradition, but I see no reason to go on cherishing either the filibuster or the Confederate flag.
Besides, that's not the filibuster we're dealing with.
The post-1975 procedural filibuster is entirely unlike the old filibuster, the one Mr. Smith, as played by the unshaven Jimmy Stewart, stayed up all night to mount in his plea for honest government (though usually it was Senator Bullhorn defending Jim Crow). The old filibuster that you and I and Frank Capra and the Confederacy love so much was very rare, and now it's extinct. No one has stood up and read recipes for Campbell's Soup for decades. In 1975 Vice President Nelson Rockefeller, in his role as president of the Senate, ruled that just fifty-one senators could vote to get rid of the filibuster entirely. A simple majority of liberals could now force change on a frightened old guard. But instead of dumping the filibuster once and for all, the liberals, unsure of their support, agreed to a "reformed" Rule 22. It was this reform that, by accident, turned the once-in-a-blue-moon filibuster into something that happens all the time. The idea was to reduce the votes needed to cut off debate from sixty-seven, which on the Hill is a big hill to climb, to just sixty. Liberals like Walter Mondale wanted to make it easier to push through civil rights and other progressive legislation. What's the harm in that?
The only problem is that, because the filibuster had rendered the chamber so laughable, with renegade members pulling all-nighters and blocking all the Senate's business, the "reformers" came up with a new procedural filibuster--the polite filibuster, the Bob Dole filibuster--to replace the cruder old-fashioned filibuster of Senate pirates like Strom Thurmond ("filibuster" comes from the Dutch word for freebooter, or pirate). The liberals of 1975 thought they could banish the dark Furies of American history, but they wound up spawning more demons than we'd ever seen before. Because the senators did not want to be laughed at by stand-up comedians, they ended their own stand-up acts with a rule that says, essentially:
"We aren't going to let the Senate pirates hold up business anymore. From now on, if those people want to filibuster, they can do it offstage. They can just file a motion that they want debate to continue on this measure indefinitely. We will then put the measure aside, and go back to it only if we get the sixty votes to cut off this not-really-happening debate."
In other words, the opposing senators don't have the stomach to stand up and read the chicken soup recipes. We call it the "procedural" filibuster, but what we really mean is the "pretend" filibuster.
But the procedural, or pretend, filibuster is an even worse form of piracy, an open invitation to senatorial predators to prey on neutral shipping, to which they might have given safe passage before. After all, why not "filibuster" if it's a freebie--if you don't actually have to stand up and talk in the chamber until you're not only half dead from exhaustion but have made yourself a laughingstock? That's what post-1975 senators began to do. In the 1960s, before the procedural filibuster, there were seven or fewer "old" filibusters in an entire term. In the most recent Senate term, there were 138.
At least with the old filibuster, we knew who was doing the filibustering. With the modern filibuster, senators can hold up bills without the public ever finding out their names. No one's accountable for obstructing. No senator runs the risk of looking like a fool. But while they're up there concealing one another's identity, the Republic is a shambles. And now, with a nominal sixty Democratic votes, the need for secrecy as to who has put everything on hold may be even greater than before.
"But just wait till 2010, when we get sixty-two or sixty-three Democrats." I'm sure that's what Senator McCaskill would tell me. "So come on, kick in." But Senator, where will they come from? They could come from bloody border states like yours (Missouri), or from deep inside the South. The problem with the filibuster is not so much that it puts Republicans in control but that it puts senators from conservative regions like the South, the border states and the Great Plains in control. The only true filibuster-proof Senate would be a majority that would be proof against those regions.
About Thomas Geoghegan
Thomas Geoghegan, a lawyer in Chicago, is the author of
In America's Court: How a Civil Lawyer Who Likes to Settle Stumbled Into a Criminal Trial and
Which Side AreYou On? Trying to Be for Labor When It's Flat on Its Back (both New Press).
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