Call Their Bluff: The Case for Letting Republicans Filibuster

Nearly one year ago, political scientist David RePass argued, in the New York Times, that the Democrats should call the Republican Senators' bluff and let them filibuster, live on C-SPAN, against health care reform and the other initiatives that the overwhelming majority of Americans support. RePass argued convincingly that allowing Republicans to merely threaten a filibuster creates what he called a "phantom filibuster," effectively requiring a supermajority for any legislation to be passed, subverting the democratic process.

In the intervening year, RePass's prophecy has come to pass in more extreme terms than even he would have predicted. As noted by Senator Tom Harkin in these pages, the Republican minority is now filibustering just about everything, including "legislation to provide low-income energy assistance, efforts to strengthen the Consumer Product Safety Commission... and efforts to ensure that women are guaranteed equal pay for equal work."

Harkin's proposed remedy is to effectively eliminate the filibuster entirely, requiring only 51 votes to cut it off. Yet even he agrees that this proposal has little chance of passing. Why not, then, revisit RePass's proposal to let the Republicans filibuster, for all Americans to see? Bring the bills to the floor, and let the Senatorial BS-ing begin.

The first and most obvious consequence of this tactic would be to expose the Republican minority for what they are: obstructionists. Of course, there are principled differences on issues such as health care reform. But it's obvious now that the Republicans are filibustering for the sake of filibustering. As their intellectual (sic) leader, Rush Limbaugh, has articulated, their interest is in seeing the President fail. Tying up Congress is a great way to do it.

So far, the tactic is working. Increasing majorities of Americans believe that government is broken, or Congress is ineffective. This view is missing some important verbs. Government is being broken by a minority of Senators, and Congress is being rendered ineffective by their tactics. Showcasing the filibuster for all to see would be a great way to make that plain.

Second, filibusters are not actually that easy to maintain. All the filibustering Senators must be present at all times. Speakers cannot stop speaking. Even bathroom breaks must be carefully coordinated. This is why most filibusters eventually get broken. If the Senate health care bill were brought to the floor right now, it would most likely pass, eventually. Yes, it would take a considerable amount of time and political courage, but it would probably happen. At the very least, it would create a sense of urgency behind the bipartisan healthcare "summit" scheduled for this week.

Third, allowing the Republicans to filibuster in this way is an excellent opportunity to recall previous filibusters, such as the three-week delay (by a coalition of Southern Democrats and Republicans) of the 1964 Civil Rights Act. Anyone who thinks that the filibuster is a proud defense against tyranny (like Mr. Smith Goes to Washington) could be treated to a quick history lesson in how it was used to maintain segregation.

Of course, a fourth consequence of allowing the filibuster to proceed would be an near shutdown of the Senate, and loud bleatings of partisanship from the propangandists at Fox News. Democrats don't want to be seen as the party that refuses to negotiate and allows the Senate to grind to a halt.

But surely even the most basic spin control can respond to such a charge. Surely it's the minority that is refusing to negotiate and shutting down government - not the democratically elected majority. Americans believe in democracy. 58% is a healthy majority, and for the minority 42% to stand in their way is anti-democratic. At the very least, it begs an explanation.

The anti-democracy of the filibuster is even more acute when one remembers that, as described by Richard Rosenfeld back in 2004, "senators from the 26 smallest states, representing a mere 18 percent of the nation's population, hold a majority in the United States Senate." This anti-democracy is, of course, a principle of federalism, but it is a principle gone awry. When the Senate was created as part of the "Great Compromise," the largest state (Virginia) had 12 times the population of the smallest (Delaware). Today, the ratio (between California and Wyoming) is 70 to 1.

Now, as Mike Lux reminded us here in the HuffPo, "the ten largest states are home to over half the country's population but represent only 20% of the Senate; the 21 smallest states together have less total population than California does." These wild disproportions are not at all what the Founders intended, and a gross distortion of the federalism they created. Changing the Constitution may be close to impossible, but showing the effects of minority abuse of the rules is not.

Allowing the filibuster to proceed would bring these statistics out of the wonky closet and into the network-news light. Ordinary Americans would see that a handful of millionaires, representing a tiny minority of the US population, are holding up nearly every major initiative of the overwhelming majority. If government is broken, these are the people breaking it. Let the American people see them.