Dr. Frist or: How I Learned to Stop Worrying and Love the Filibuster

Tensions are high in the District today as the Senate hurtles toward a collision over the future of an arcane piece of parliamentary procedure: cloture. Unlike most Americans, I've encountered this rule before. In college, I taught parliamentary procedure to underclassmen. My first task was convincing them that procedure actually matters. They were skeptical. Needless to say, my explanation has now been vividly illustrated by the U.S. Senate.

The motion for cloture was introduced in the House of Representatives in the early 1800's as a majority vote. Whig Senator Henry Clay threatened to introduce it to the Senate in 1841 along the same lines, but he made the mistake of calling it the "nuclear option", and nobody knew what 'nuclear' meant, so the attempt failed.

In 1917, cloture was introduced in the Senate, but with a two-thirds supermajority needed. The filibuster had its "glory days" in the middle of the 20th century, courtesy of Jimmy Stewart and Senator Strom Thurmond. In 1975, the Senate downsized the supermajority to two-fifths. At the time, not coincidentally, sixty senators were Democrats.

However, another rule change was made in 1975 that is, I believe, the root of our current confrontation: the real filibuster was abolished. Instead of senators actually standing before the body and speaking for hours and hours on end, reciting poems, reading the Constitution, and sharing homebrew liquor recipes, they just raise their little placards to indicate that they intend to filibuster.

Both sides in the current debate have a valid point. As Senator Frist points out, the Democrats have set a new precedent in partisanship by filibustering judicial nominees. As Senator Reid points out, the Republicans are poised to make it dangerously difficult to prevent even the slimmest of Senate majorities from pushing through its agenda.

Bringing back the real filibuster - the one with the homebrew liquor recipes - would solve all of our problems. The Democrats would be forced to choose their battles. Not only is it physically taxing to speak for hours on end, it also makes for bad C-SPAN2 and bad politics. Senators would have to use the filibuster judiciously to avoid being seen (accurately?) as obstructionists.

On the other hand, the Democrats would retain the filibuster as a tool and could use it to call attention to those truly unsuitable nominees. It's unlikely any questionable nominee would survive a good, organized filibuster of the Jimmy Stewart variety. So the Democrats could get what they want: no radical conservatives on the Supreme Court bench, for example, and no Bush cronies on any court.

The filibuster is a useful and sensible tool, but only when it is in proper political balance. The sit-down filibuster of the past thirty years has proven unsustainable. We have a choice: either the filibuster dies (sooner or later), or we return to a balanced filibuster, complete with sore throats and homebrew liquor recipes.

Sources:
U.S. Senate website
About.com on the U.S. Senate filibuster

Note: this post was originally written for Watchblog