By Peter Roff, Thomas Jefferson Street blog
It is profoundly ironic that Senate Democrats, who are now numerically strong enough to do whatever they want, continue to complain about the Republican use of the filibuster to slow the progress of the healthcare bill. It is true, as my bloleague Robert Schlesinger wrote here several days ago that its use has increased over the last several decades. As Gordon S. Jones, editor of The Imperial Congress, told me in an E-mail, the increase in the reliance of both parties to slow the pace of legislation "correlates perfectly" with the majority party's growing tendency to eschew consensus, compromise, and bipartisan support for legislation.
"When those things are sought as they were in earlier decades," Jones told me, "there was no need for the minority to resort to filibuster. Their interests were accommodated with it. Today, parliamentary majorities in both houses ignore the minority party and cram legislation down our throats."
"It is hard to quantify," Jones says, "but my own sense of changes in the use of the filibuster is that it stems significantly from its use by Democrats for things that traditionally were not challenged by the party that did not control the White House. Democrats began filibustering nominations and treaties that in earlier times were accepted as a matter of course or presidential prerogative."
Part of this is the result of changes to the rules of the Senate pushed through during the reign of then Majority Leader Robert Byrd—now, at 92, the Senate's oldest member.
Prior to the 1970s, a filibuster would stop the work of the Senate in its tracks. Under Byrd's leadership in the years immediately following Watergate, the Democrats created a two-track method for conducting Senate business. With the threshold for cloture dropped from 67 votes to 60, Byrd made it possible for the Senate, by unanimous consent, to move to other business while the item being subjected to a filibuster was set aside in limbo.
This change made the filibuster less disruptive to the will of the majority and the majority leader, as such, something that could be used more frequently—as it has been.
On the other hand, it still exists as a mechanism to protect the rights of the minority, which is how the Republicans have used it during the healthcare debate. Senate Majority Leader Harry Reid has used his prerogative to behave as an autocrat, stifling free and open debate by determining which amendments will be allowed before a bill is on the floor. This makes it nearly impossible for the Republicans to offer amendments—unless they rely on the threat of filibuster.
"Filling the tree," as Senate staffers call it, happens before the GOP threatens to filibuster. The real problem here is that Reid knows the healthcare bill is too radical, too much of a leap to the left for red-state Senate Democrats to stomach. Complaints about the filibuster, in this case at least, are misplaced.