With the election of Scott Brown as the new senator from Massachusetts, bringing GOP ranks to 41, Republicans are acting as if they have retaken control of the Senate. And, in a practical sense, they have.
Thank the filibuster, the tactic that is either hailed or reviled depending on which legislation it is blocking. And, unless one party decides to change the Senate rules, the filibuster is here to stay.
That is not to say it has been around forever. While some might assume that the filibuster is ensconced somewhere in the Constitution, it is simply a procedural rule adopted by Congress. And it remained a strictly theoretical concept until the first Senate filibuster in 1837.
It was used sparingly until the 20th century, when the rule of cloture — or halting the debate with a two-thirds vote — was adopted. The filibuster became a favored tactic of Southern senators in the 1950s and '60s, commonly used to block civil rights legislation.
Sen. Strom Thurmond, then a Democrat, set a record, holding up the 1957 civil rights bill by speaking for 24 hours and 18 minutes straight. But the filibuster — or the threat of one — has been used by members of both parties to stymie legislation in every decade since.
Opinions about the filibuster change with the shifting political winds. While the filibuster had been the favorite tool of segregationists and states-righters, in 2005 it was the liberal Democrats who were defending its noble tradition.
That was the year they were using it to block a floor vote on several of President George W. Bush's judicial nominees. An enraged GOP Senate Majority Leader Bill Frist of Tennessee threatened to invoke the so-called “nuclear option.”
Under this ploy, Vice President Dick Cheney, as president of the Senate, would declare that a filibuster on judicial nominees was inconsistent with the constitutional provision allowing the president to name judicial nominees with the advice and consent of a simple majority of the Senate. In other words, they would change the rules to suit the needs of the moment.
But a bipartisan group of 14 senators — dubbed the Gang of 14 — which included South Carolina Sen. Lindsey Graham, worked out a compromise in which Democrats agreed not to filibuster Bush's nominees except under “extraordinary circumstances.” In return, Republicans agreed to defuse the nuclear option.
But that agreement expired in January 2007 at the end of the second session of the 109th Congress. And in the 2007-08 session, after Democrats had regained the majority, Republicans, forced 112 cloture votes, doubling the Democrats' record when they were in the minority.
Now, of course, the mere threat of a filibuster is enough to stop a bill in its tracks. Anyone who has followed the arduous debate over health care reform is familiar by now with the need to round up 60 votes to counteract the threat of a filibuster from the GOP minority.
But the minute Sen. Brown, R-Mass., is sworn in, the Democrats no longer will have a 60-vote majority. They won't have enough Democratic votes to keep the minority from halting legislation — specifially, in this case, the health care bill.
Maybe it's time to haul out the nuclear option again. But before the Democrats do that , they might want to consider the fact that political fortunes are fleeting, and they soon might find themselves in the minority again. And if they do, the filibuster can be a handy weapon with which to bludgeon the majority.
What voters need to realize is that, when it comes to the filibuster, both parties are hypocrites. That's a demonstrated fact.
The pertinent question is whether allowing 41 soreheads to throw a wrench in the legislative process is good for democracy.