The following editorial first appeared in the Los Angeles Times:
The U.S. Senate, once proudly known as the world's greatest deliberative body, has in recent years degenerated into something else: The place where legislation goes to die. It earned that distinction after Democrats won a majority in 2006 and Republicans took unprecedented advantage of long-standing Senate rules allowing the minority to block progress.
There's a good chance Democrats won't hold the majority much longer, however. That's why both parties should be willing to eliminate such anti-democratic practices as the filibuster and the placing of secret holds on legislation. And an opportunity to do so, which only comes along once every two years, is about to arrive.
The filibuster originated in 1806, when the Senate eliminated a rule that had allowed the chamber to end debate by majority vote; in effect, that meant a senator or group of senators could delay progress by simply talking incessantly.
But that hardly ever happened in the 19th century. It wasn't until 1917 that the Senate decided to limit these stemwinders by imposing a rule that debate could be ended by a supermajority vote. Since then there have been some other rule changes altering the vote threshold, along with frequent arguments about whether the Senate should go back to its original rule allowing debate to be ended with a simple majority vote. We think it should.
Under the current system, senators don't even have to stand up and speak until they're hoarse in order to filibuster a bill; a party leader just has to refuse to allow a bill to be brought up by unanimous consent, forcing supporters to find 60 votes in favor of a motion to end debate.
Southern Democrats were the first to seriously misuse this tactic during the civil rights era, but Republicans have perfected such abuse in the last three years. According to the good-government advocacy group Common Cause, which once defended the filibuster rule but now aims to eliminate it, 8 percent of major legislation was affected by threatened or actual filibusters in the 1960s, compared with 70 percent since 2006. The result is gridlock, which will only get worse now that the balance of partisan power is close to even.
Secret holds are another serious problem. They allow senators to anonymously block bills or confirmations of presidential nominees from reaching the floor for an unlimited time span, making naked obstructionism politically safe. It's largely thanks to such holds that more than one in 10 federal judgeships remain vacant and federal departments still lack key staff two years into the Obama administration. Abuse of holds has become endemic in recent years, sometimes allowing a single senator to take the entire chamber hostage by placing holds on important legislation until backers agree to support that senator's pet project.
The Constitution gives each chamber the power to choose the rules governing its procedures at the beginning of the two-year congressional session, slated this year for Jan. 5. So why doesn't the majority simply do away with the filibuster rule, or amend it? Because changing a long-standing rule requires a two-thirds vote, an impossibly high hurdle. Yet that supermajority rule may be invalid, as argued by then-Vice President Richard Nixon in 1957: "The right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress," he wrote. This is the basis of the so-called nuclear option (or as supporters prefer to call it, the "constitutional option").
Sen. Tom Udall, D-N.M., is leading a push to reform the filibuster rules on Jan. 5, a fight joined by assorted good-government groups and labor unions. Last week, all the returning Senate Democrats sent a letter to Majority Leader Harry Reid, D-Nev., expressing frustration with the filibuster and urging a change to the rules, though they weren't specific about solutions (and it's unlikely many would favor eliminating the filibuster entirely most seem to support weaker reforms such as a lowering of the 60-vote threshold). In order to change the rules by a simple majority vote, they would also need the backing of Vice President Joe Biden, because as president of the Senate, the vice president has traditionally ruled when constitutional questions about procedures are raised.
Biden hasn't taken a position, and not a single Republican has joined the effort. The apparent partisan split seems odd given that it was Republicans who most recently brought up the nuclear option when they were in the majority in 2005 and Democrats were blocking President Bush's judicial nominees, but a form of amnesia often sets in when a party is in the minority. For conservatives, opposition is all the more shortsighted given that twice as many Democratic-held seats are up for reelection in 2012 as Republican seats.
Partisan fears about losing a cherished power have prevented the Senate from going nuclear for decades, but abuses of the filibuster and anonymous holds have never been so rampant. The resulting dysfunction is a big part of the reason Congress' approval rating has fallen to 13%, the lowest in the history of the Gallup Poll. The chamber has a chance to save itself from itself on Jan. 5, and it should take it.