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It may be time for filibuster reform

Posted: November 15, 2011 - 12:00am

It’s becoming more likely the Republican Party will take over the U.S. Senate in 2012.

This is more a function of math than anything else. Of the 33 seats up for election next year, 23 are held by Democrats, and the GOP only needs to flip four to claim a majority in the upper chamber. The election prediction and analysis site Real Clear Politics paints two currently blue Senate seats GOP red, and of the eight races the site calls toss-ups, six are for seats currently held by Democrats.

Real Clear Politics is less clear about who will become president in 2012. President Barack Obama is generally winning the head-to-head polling battles against each individual Republican candidate, though he trails a generic Republican opponent slightly and is just barely ahead of current GOP front-runner Mitt Romney.

Of course, it’s nearly a year before the 2012 general election and a lot can happen, but it’s distinctly possible the U.S. will have a Democratically-controlled White House and a GOP-held Senate in January of 2013. If that does in fact come to pass, one topic the Democratic minority needs to take up is filibuster reform.

It may seem counterintuitive to suggest the minority party give up one of its most powerful weapons when it comes to defeating legislation. It’s a device that allows a minority of 40 senators to prevent most legislation from being brought to the floor of the Senate for a vote, and only an overwhelming Senate majority eliminates its use.

However, its overuse in recent years by the GOP Senate minority should give the Democrats incentive enough to make a temporary sacrifice in order to take the filibuster off the table for once and for all. From 2007, the year the Republicans fell into the minority, until the end of the 100th Congress in 2010 there were 275 cloture motions — or motions to end debate — filed. Compare that to the 130 such motions filed to try to end Democratic filibusters in the four years prior. To be sure, not all cloture motions are anti-filibuster measures, but the correlation between cloture motions filed and filibusters attempted is high. That math should give a potential Democratic minority some incentive to end the filibuster, surrendering it so it’s not used against them even more aggressively when the Dems return to a Senate majority in two years or 20.

The Senate changed its rules in the early 1800s to allow unlimited debate in an effort to ensure all points of view were heard in “the world’s greatest deliberative body,” and high-powered states and/or the dominant political party couldn’t prevent senators from smaller states or the minority party from trying to sway votes through debate (such a thing actually used to happen). However, in time, the filibuster was perverted into a device to stop discussion on important matters, not to add to it. Southern Democrats used it to fight civil rights legislation, for example. It gives the minority in the Senate inordinate power to stop a legislative program of an elected majority, and it needs to be ended.

Senate Republicans nearly came to the same conclusion in 2005 when they grew weary of Democratic attempts to filibuster some of President George W. Bush’s judicial nominees, threatening to have the Senate’s presiding officer (then Vice President Dick Cheney) overrule the Senate parliamentarian and declare the filibuster unconstitutional. Such a move, dubbed the “nuclear option” by critics, would only require a majority vote, instead of the two-thirds tally usually needed to change Senate rules. Current Senate Majority Leader Harry Reid actually did something similar earlier this year, to prevent a GOP filibuster by amendment, though Reid’s move came after the Senate successfully voted down a conventional filibuster attempt. However, Democrats in 2005 were able to paint Trent Lott’s nuclear option as an unprecedented power grab, and the public could very easily see a more expansive use of the nuclear option by present-day Democrats in the same light. This means Democrats, already fearful of losing the Senate, are unlikely to take this route now, lest it lead to truly disastrous results at the polls in 2012.

A surrender of the filibuster if the Democrats are in the minority in 2013, however, probably would be viewed much differently. And Dems would still be able to rely on a presidential veto (remember, this scenario is predicated on Obama holding the White House) to stop particularly odious legislation. This outcome would, for once and for all, remove this undemocratic obstacle to the agendas, Democratic or Republican, Americans vote for, and would force constitutionally planned-for checks against the tyranny of the majority to be used. The advantage there? Presidential vetoes and judicial reviews are conducted in the public eye, not schemed for behind the scenes through parliamentary tricks. In the information age, based on transparency, the processes of the Republic should be moving towards openness, not shying away from it.

• Ward is the Deputy Managing Editor of the Juneau Empire. The views expressed here are his own, and do not necessarily reflect the views of the Empire’s Editorial Board.

• Editor's note: This column has been changed to correct the spelling of former Vice President Dick Cheney's name.

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