"Even before the Senate opened the historic . . . debate on health care reform . . . the opponents of reform flourished their ultimate weapon. ‘Anything I can do within the rules of the Senate to prevent the government from taking over or controlling the health care market, I’m going to do it,’ declared [one Republican senator] . . . at a news conference the day before the debate began. At the same news conference, Richard C. Shelby … of Alabama, put it more bluntly.
‘Would I mind filibustering against something like this to kill it?’ he asked himself rhetorically, referring to the compromise bill offered by [the Democrats], and answered, ‘Absolutely not.’” These are Republican remarks from the current debate, right? No, they’re from the health care debate of 1994. The fact that Republican Senate Minority Leader Mitch McConnell is saying the same things now — almost word for word — simply means that it’s deja vu all over again.
Opposition to health care reform ranges all over the Senate. Republicans have openly and bluntly stated that they want to see President Obama fail.
Some Democrats are compromised by special interests. A few other senators from both parties have legitimate concerns but not the votes to support those concerns on an up-or-down vote; so rather than let the majority rule, they obstruct.
All are playing by arcane Senate rules — specifically Senate Rule XXII, which allows for unlimited debate, better known as the filibuster. The price of getting health care reform past these obstructionists has been appeasement. This week, Democratic leaders and the president gave Ben Nelson (D-NE) what he wanted. Last week, Joe Lieberman (D- CT); the week before, Olympia Snowe (R-ME). Anything to get that supermajority of 60 votes.
What makes the Senate custom of unlimited debate all the more irresponsible are rule changes from the 1970s. Today, obstructionists aren’t even required to take the floor and make fools out of themselves. Once a senator announces the intent to filibuster, the body simply moves on to other business until the required 60 votes can be assembled or the target bill dies. In the words of Hendrick Hertzberg, it’s “No fuss, no muss, no embarrassing Cleghorns in string ties reading excerpts from the telephone directory far into the night. Filibustering has become a no-show job.”
A simple majority of senators representing just one-sixth of the population can stop the wheels of government.
Worse yet, filibusters have become the rule.
There were only 16 filibusters in history prior to 1950; in the period from 1960 to 1990, that rose to more than 200. Yet just in the last 20 years, there have been more than 300 of them.
The ease of obstructionism is a factor. A simple majority of senators representing just one-sixth of the population can stop the wheels of government. Under these circumstances, special interests can pressure and buy senators from smaller states on the cheap — and Joe Lieberman is the poster boy for such doings. Just three months ago, he expressed strong support for the Medicare early buy-in. Before that, he had argued for a public option. But all that changed when the insurance lobbyists raised the heat. Lieberman, whose state is dotted with insurance company HQs, threatened to prevent a cloture vote unless both the public option and the Medicare buy-in were stripped from the Senate bill.
And try this on: This very same Joe Lieberman back in 1994 proposed that the filibuster be changed from a blocking mechanism into one that could merely delay action for a time. Today Lieberman, having shown himself to be a man of zero principle, uses this very rule to do the bidding of his industry handlers.
Nor is the argument that the filibuster is needed to prevent “tyranny of the majority” on solid ground. The Framers did view the Senate as a brake on majority passions, but they sought to achieve this end through over-representation of states and longer terms, not systemic obstruction. Consider: Wyoming has only slightly more than one-quarter of the population of Washington’s King County. Yet Wyoming has two senators, just like the entirety of Washington state. Isn’t that enough of an edge?
It’s safe to say that the Framers didn’t intend to protect against tyranny of the majority only to bring about tyranny of the minority.
The Constitution limits super-majorities to treaty ratification, impeachment, expulsion of a member, veto overrides and amendment proposals, but it does permit the Senate to set its operating rules. Nonetheless, it can be argued that the unlimited debate rule, in practice, runs contrary to the overriding right of majority rule guaranteed by the Constitution. In any case, this nasty trek toward health care reform should lead us to a New Year’s resolution: Once and for all, dump the filibuster.