Calling the Filibuster Bluff

Welcome to Washington, where 60 is the new 51.As important
legislation from health care to climate change moves through Congress,
the conventional wisdom is that "you need 60 votes'' to get anything
through the 100-member Senate. In fact, most bills can still pass with
51 votes. But a supermajority of 60 votes is needed to avoid a
filibuster, a last-ditch option supposedly reserved for matters of
deepest principle.

Indelibly associated with Jimmy Stewart in "Mr. Smith Goes to
Washington'' - or, less profoundly, with Louisiana's Huey Long reciting
recipes for fried oysters and potlikker in 1935 - the filibuster was
designed to be a marathon test of wills, with the truly committed
undergoing punishing conditions to prevent odious schemes from becoming
law.

Not anymore. Because of a 1975 rules change that allows 41 or more senators to hold up legislation merely by expressing their intention
to filibuster, the tactic has become almost routine, cheapened beyond
recognition by the Beltway's new math. A filibuster that doesn't
actually disrupt the Senate's business doesn't cost anything, so it's
easy to pull the trigger.

This so-called gentleman's filibuster - all of the obstruction with
none of the inconvenience - gives inordinate power to a few
fence-sitters. Right now, it's Joseph Lieberman of Connecticut and Ben
Nelson of Nebraska. Both are considering joining Republicans in a
filibuster if they don't get their way on health reform.

"I've got to use the right I have as a senator to stop something
that I think is going to be terrible for our future, which is the
public option,'' said Lieberman, representing his constituents in
Hartford (that is, the insurance companies). Nelson's issue is
abortion: the conservative Democrat doesn't want subsidized insurance
plans offering the procedure, even if women pay for the coverage
themselves.

Because Democrats have only the most tentative hold on 60 seats
(including Lieberman, who ran as an independent but caucuses with the
Democrats), party leaders and the Obama administration are scrambling
to accommodate their apostates. But what Lieberman and Nelson are
threatening is not a filibuster - it's a filibluster. Why not
call their bluff? Force a real filibuster, make Lieberman bring the
business of the Senate to a screeching halt in order to defend
insurance industry interests, and see how the American people respond.
Show Nelson holding up his party's most important legislation in a
generation. And put the 40 Republicans on display as the party of No.

There's some precedent for this approach. In 1995, House Speaker
Newt Gingrich's move to shut down the government in a high-stakes
budget dispute with President Clinton backfired badly. When veterans
couldn't get their benefits and American families on vacation found the
national parks shuttered, Gingrich discovered people liked their
government after all. He withdrew.

It wouldn't be easy. Under current rules the filibustering party can
doubt the presence of a quorum (50 members) at any time, forcing a roll
call vote. That means the filibustering party only needs to keep one
person droning away in the chamber at any time, while the defending
party needs to keep 50 members on the floor, or at least nearby. So the
burden would be heavier on the supporters of health care reform than on
the filibustering few.

But this is a momentous piece of legislation. Americans have waited
60 years since President Truman first tried to enact universal health
care; surely their senators can withstand a few days or weeks of
hearing the phone book read aloud. Meanwhile, calls to get on with the
people's business would rise to a crescendo and opponents would
concede, letting progressive, meaningful health care reform come to a
vote.

Of course it's a risk. But the alternative is no bill at all, or one so watered down as to be a hollow victory.

The filibuster is an important democratic tool, a hedge against the
tyranny of the majority. It shouldn't be dumped, just restored to its
former glory. It would be a boon for democracy, with more of the
people's business dragged out of clubby caucus rooms and onto C-Span.
And more senators being called on to stand and deliver.

Renee Loth's column appears regularly in the Globe.