The filibuster needs a fix

Filibuster is just another word for obstruction. It's a time-honored, foot-dragging tactic in the U.S. Senate, employed over the years by Republicans and Democrats alike. At its best, it serves the useful purpose of preventing total domination by the party in the majority. At its worst, it's the road to gridlock, which is where we find ourselves today.

The filibuster has become so rampant and entrenched that it now allows a minority of members to dictate what does and doesn't get done in the U.S. Senate. That's undemocratic, and good reason to retool Senate rules to rein in its use.

The tactic is defined informally in the Senate glossary as any attempt to block or delay action on a bill or other matter by debating it at length or by any other obstructive actions. In both mythology and tradition, it meant senators standing in the well of the chamber talking to exhaustion to prevent a vote on a bill not likely to go their way.

Jimmy Stewart, as the fictional Sen. Jefferson Smith in the Frank Capra film "Mr. Smith Goes to Washington," lent the practice a romantic air of principled stubbornness. The historic reality is more akin to Sen. Strom Thurmond of South Carolina infamously talking for 24 hours and 18 minutes in a callous attempt to prevent a vote on the Civil Rights Act of 1957. But neither of those classic examples has much in common with modern usage.

In today's Washington, senators, exercising their almost unlimited right to speak, can simply signal they are unwilling to stop debating and allow an up or down vote on a bill. They no longer have to actually take to the floor in a talkathon. Today it's all virtual reality.

Once initiated, a filibuster is just assumed to be ongoing until a supermajority of 60 senators votes to end it. That has made filibustering too easy and essentially cost-free politically. A lone senator can put a hold on a bill or nomination, preventing it from ever being debated. Sen. Tom Coburn (R-Okla.), for instance, used a hold late last year to block $1.15 billion in rebuilding aid for Haiti. Individual senators can even derail bills anonymously.

The result is that what used to be rare and public and a tool to extend debate, is now ubiquitous, often anonymous and a tool to prevent debate.

In the 1950s, the Senate averaged about one every two years. In the last Congress, that number ballooned to about 140. The inability to pass a 2010 budget or confirm nominees to fill 96 vacant federal judgeships are examples of the result.

Fights over the filibuster are always partisan. For obvious reasons the majority party often wants to scrap it, while the minority party fights to keep it. It was Republicans, then in the Senate majority, who threatened to end it in 2005 when Democrats filibustered repeatedly to block confirmation of President George W. Bush's judicial nominees.

Now it's Democrats, with a 51 to 47 majority, who are pushing to mend it, after a Republican minority held the Senate hostage last month by filibustering every item on Democrats' agenda until they got tax cuts extended for the richest 2 percent of taxpayers.

This editorial board supported retaining the filibuster when Republicans wanted to kill it, and still does today, now that it's Democrats who are complaining about it. But increased abuse does make reasonable reform necessary, and the proposal Senate Democrats laid out last week is a sensible place for negotiations to start.

One excellent idea in the proposal is to bring back the Mr. Smith-style filibuster by requiring senators to actually stand on the floor and talk continuously when they want to block a vote. It would test the resolve of those senators, and likely dramatically reduce the number of filibusters. Rare would be good.

Another key reform would be eliminating the anonymous holds that allow a single senator to block Senate action. Democrats want to end the anonymity, but that's not good enough. No lone senator should be able to derail a nomination or a piece of legislation. Nothing could be more undemocratic.

It's also important to eliminate filibusters on "motions to proceed," which are used to kill time and prevent a bill from coming up for debate. Squelching debate is more undemocratic than filibusters that prolong debate in order to block a final vote, which should still be allowed.

Those changes alone would go a long way toward restoring the filibuster to its useful role. But to make them acceptable, the party in the minority should be guaranteed the right to offer amendments to bills, which hasn't always been the case under Majority Leader Harry Reid (D-Nev.).

And to move more quickly to up or down votes on judicial and executive nominations, once 60 senators vote to "invoke cloture" - officially ending a filibuster - the time allotted for further debate should be considerably less than the current 30 hours.

The filibuster doesn't exist in law or the Constitution. It's a creation of Senate rules. A simple majority can change the rules, but only on the first day of a session. Otherwise it takes 67 votes, which would make reform all but impossible. But under another arcane rule, "day one'' last Wednesday was extended for weeks by recessing, rather than adjourning. This is a good moment for change. Democrats in the majority at the moment want it. And Republicans, who are eyeing gains that could put them in the majority as soon as 2012, could benefit too.

Reformers should use this window of opportunity to make the filibuster what it used to be - rare and public political theater. hN