Senate still paralyzed by the filibuster

This was the year when the power of the filibuster, the 96-year-old parliamentary maneuver that lets the minority control the Senate, was supposed to be brought under control.

Nevada Sen. Harry Reid, the Democratic Majority Leader, said he had seen the light and could support the changes to the rule that he had previously rejected.

Maine’s brand new independent Sen. Angus King, who promised to support major revisions to the rule if he got to Washington, was in a key position to trade his lining up with the Democrats for improvements proposed by a few of his colleagues.

A simple majority is 51 votes.  There are now 55 Democrats (including two independents) and 45 Republicans in the Senate, so the majority ought to be able to pass legislation.  It didn’t happen.

The filibuster requires that 60 senators agree to end debate on an issue.  Effectively, that has come to mean that almost nothing important can pass the Senate without that supermajority.  

Instead of fixing the problem, the Senate tinkered with it.  In all the votes taken in the Senate through May 10 this year, 60 votes were required 31 percent of the time.  Last year, during the same period, the supermajority was needed 58 percent of the time.

That may look like progress, but the change was a procedural illusion, the result of a minor revision that is far from blocking the ability of the minority to control.

At the beginning of each new Congress, a simple majority is all that’s required to change the filibuster rule.  So why didn’t the Democrats make the change?

They were afraid.  They preferred to allow the GOP to hamstring their president and their majority, because they worried about what would happen if someday they found themselves in the same position as the Republicans.

And what about King, a man who, as a mature and independent politician, might be less concerned about doing the traditional thing, instead being willing to use the platform that his special status gives him?

If he acted truly independently, he would have probably displeased Sen. Reid, who would then have assigned him to minor committees instead the prime spots he got on the Armed Services, Intelligence and Budget Committees. 

On Armed Services, for example, he may be able to support B.I.W. or the Portsmouth shipyard. That may have seemed more important than real reform.

What Reid and King did shows the way Washington works.

But these days, Washington is not producing results.  And the filibuster has a lot to do with that.

We read how a bipartisan bill to require broader background checks for gun purchasers was “defeated” in the Senate.  That supposed loss came despite the support of 54 senators for the bill. But 60 were needed.

People may argue about some provisions of the Constitution, but it is remarkably clear in defining those few instances when more than a simple majority is required in the Senate. The senators have simply amended the Constitution to suit the minority.

Reliance on the supermajority may be less valuable than it seems.

In plugging her new book, former Maine Sen. Olympia Snowe, a Republican, relates how she might have been able to support the Affordable Care Act – Obamacare – if the Democrats had been willing to accommodate some of her concerns.

But the Democrats had 60 senators, enough to pass their bill without compromising. 

Then, two unexpected things happened. The House Democrats narrowly passed another version of the bill that was more complicated and less effective.  And the Senate Democrats lost their 60^th vote when Massachusetts Sen. Ted Kennedy died and was replaced by a Republican.

The only way for the Democrats to pass the final version in the Senate was to accept the House version unchanged.

The result is that Obamacare is under attack from Republicans who can fairly claim that nobody would listen to them when they sought compromise.

How different government would be if the Democrats, without having to do so, had sought compromise with at least some Republicans.  

That’s the way the Senate often worked before the GOP started using the filibuster for almost any major piece of legislation.

If the filibuster were abandoned, any piece of legislation adopted by only one party could easily be repealed after an election that brought the other party to power.  That could mean more effort to pass bipartisan bills in the first place.

In other words, the absence of a filibuster could be more likely to promote durable political compromises than does today’s approach which virtually guarantees unproductive partisanship.