|So far in 2009, because of its 60-vote requirement, the Senate has either blocked, or watered down, much of the Democratic agenda. Here is just a partial list of the policies blocked or watered down by the Senate:
Time and time again, the Senate has been an obstacle the sweeping progress collectively represented by these policies. Or, more accurately, the 60-vote requirement in the Senate has been an obstacle to sweeping progress, since it is highly likely that all of these bill (save the estate tax) would have broken in favor of the more progressive option if there was no 60-vote requirement in the Senate.
- Stimulus. The Senate reduced the size of stimulus / jobs package by about $100 billion.
- 100% auction cap and trade: Both the House and the Obama administration are in favor of 100% auction cap and trade legislation. However, the Senate is likely to pass a bill with only about 25% auctions.
- Employee Free Choice Act: The Senate has blocked EFCA entirely.
- Bankruptcy "cramdown" reform: The Senate has prevented homeowners facing foreclosure from having their mortgages reduced during bankruptcy proceedings, and otherwise watered down the Help Families Save Their Homes Act.
- Executive compensation: While the House has passed executive compensation limits for companies receiving bailout money, the Senate has yet to act.
- Bailout reform: While the House passed the TARP Reform and Accountability Act, placing strict conditions on bailout funds, the Senate simply released the second round of TARP money with no strings attached.
- Health Care reconciliation: The Senate's budget does not allow the Obama administration's increased health care investments go through without a Republican filibuster, even though the House's budget does.
- Estate tax: The Senate also voted to keep most of Bush's estate tax repeal in place, which the House did not do.
Now, Democrats are in a bind on what to do about the obstruction to progress caused by the 60-vote threshold. Because they fought in favor of keeping the 60-vote threshold four years ago, moving to abolish it now would justifiably appear hypocritical. Further, it would also come off as a highly partisan move, which would cause problems for the Obama administration.
So, if we can't remove the filibuster, then many Senators and progressive activists have long concluded the best move was to force Republicans to actually filibuster all of the above legislation. Maybe we can't get the legislation through, but make Republicans stand up and talk for a week to, for example, deny cheaper and more affordable health care for Americans. This way, Republicans pay a political price for their record-breaking filibustering, and face far more political pressure to cave to Democratic demands. The hope is that this will results in both more Republican votes for Democratic legislation and, come election time, fewer Republicans in the Senate.
Unfortunately, this approach was recently closed off, too. After an extensive look into Senate rules, Majority Leader Harry Reid concluded that Democrats are unable to force Republicans to actually filibuster any of the above listed legislation:
Hoping for a C-SPAN spectacle of GOP obstruction, some impatient Democrats are urging Senate Majority Leader Harry Reid (D-NV) to call Republicans on their filibuster bluff.
House Majority Leader Steny Hoyer (D-MD) made a plea typical of the genre, recently telling Politico that Reid should force Republicans into a filibustering talk-a-thon, "so that the American people can see who's undermining action."
By threatening a filibuster, the shrunken bloc of 41 GOP senators has just enough members to prevent a vote, requiring Democrats to make concessions to pick off a few moderate Republicans.
Reid has heard the calls. But his answer will surely disappoint: Sorry. It can't happen.
I am not going to doubt Harry Reid's interpretation of Senate rules. These rules are byzantine, to say the least, and are not easily understood by anyone. However, if the 60-vote rule is the real obstacle to progress right now, and if Democrats can neither abolish the 60-vote rule nor, according to current rules, force Republicans to filibuster, there is one thing we can do:
Use the "nuclear option" to change Senate rules in a way that requires all filibusters to be actual, talk-a-thon incidents of obstruction.
While I am not entirely sure how this could be accomplished, I am pretty sure it can be accomplished. If Republicans could have used the "nuclear option" to end the filibuster on judicial nominees, then why can't Democrats use the "nuclear option" to force filibusters to actually become filibusters? Seems like it should be doable.
Assuming for a moment that this is possible, it would be the best and most politically feasible solution to the problems detailed above. It has the following advantages:
- It avoids hypocrisy: Since Democrats are not actually removing the filibuster, they can avoid a credible charge of hypocrisy.
- It puts a price on partisanship: If, like the Obama administration, you actually want to create more bipartisanship in Washington, D.C., then it is important to put a political price on partisanship. Forcing Republicans to actually filibuster, and thus go public with their obstruction, places just such a price on their continued partisan, record-breaking use of the filibuster. You can't expect people to just become less partisan simply because you ask them to become less partisan--make the cost of partisanship higher than the cost of bipartisanship.
- It actually increases public dialogue: Making the filibuster an actual filibuster will put arguments over issues front and center. There is no way to avoid a national debate on, say, health care, if Republicans are spending a few days talking on television to hold up health care. Once the rule is changed, it will put issues, rather than vague process talk, front and center in the public debate.
Voters in 2006 and 2008 overwhelmingly indicated that they support change away from conservative and Republican policies. In response, Republicans have turned the filibuster into a highly partisan act, breaking all previous records for its use and wielding it to block or water down the agenda of change. What we need to do is force those people who oppose this change stand up in public and defend their position, rather than hiding behind a procedural rule.
We can do this if we use the "nuclear option," fifty Democrat Senators plus Vice-President Biden, to change Senate rules requiring filibusters to be actual periods of indefinite, obstructive talking. If Al Franken isn't seated soon, if health care reform doesn't pass, if energy reform doesn't pass, this is the move Senate Democrats need to make. Or, given that Republicans have already severely abused the 60-vote rule over the past 27 months, just do it now.