Election day 2012 was a great day on so many levels, but one of the most pleasant surprises was Senate Majority Leader Harry Reid's pledge to consider reforming the filibuster, the antiquated Senate rule that allows a minority to block legislation. Senator Reid has made similar pledges in the past without taking action, but hopefully this time he is serious.
A brief historical detour conveys some of the injuries that filibusters have inflicted. Between 1882 and 1968, 4,749 Americans were lynched by vigilante mobs. Most of the victims were African Americans and Mexicans, and most were hanged in the deep south, where white friends and relatives exchanged postcards featuring photographs of mutilated bodies hanging from trees, surrounded by smiling onlookers.
Seven Presidents urged Congress to pass federal anti-lynching legislation, which the public supported by wide margins. In 1937, 72 percent of Americans including 57 percent of southerners supported the passage of federal anti-lynching law. Three times, in 1922, 1937 and 1940, the House of Representatives passed anti-lynching laws and sent the bills to the Senate. Southern Senators used the filibuster to kill all three bills.
Fast-forward to the twenty-first century, and the filibuster continues to enable the Senate to mock democracy and disgrace itself time and again. If it weren't for the filibuster, this country would be light-years ahead in terms of addressing our most serious problems including climate change, inequality, immigration, financial reform and the cost of health care. President Obama made significant headway on some of these issues, but many common-sense solutions such as single payer health care were never even on the table because of the threat of a filibuster.
The filibuster also incites a great deal of cynicism about the political process by undermining the "link between elections and policy outcomes," in the words of Gregory Koger, author of a recent book about filibusters. Even when voters send Presidents to Washington with a clear mandate for change, the filibuster makes it quite difficult for them to deliver on their promises. In addition, it allows minorities to undermine the courts. Largely because of the filibuster, there are now 70 judicial vacancies and 34 appointments awaiting Senate action. The average wait time between committee vote and confirmation has increased from 28 days under President George W. Bush to 136 days under President Obama.
It is frightening to think about the damage that Republicans could do if they gained control of both chambers as well as the White House without the constraint of the filibuster. But that said, its elimination could have a moderating effect on the GOP, in that conservatives who currently espouse extreme policies such as privatizing social security and turning Medicare into a voucher system know that as long as the filibuster remains in place, their bluffs will never be called. If the Republicans had to govern on the basis of policies they claim to support, they would be punished at the ballot box, as was the case in 2006.
The Senate has modified its rules in the past when it was shamed into action, and there is nothing about the filibuster that is set in the Constitution or in stone. When the new Congress convenes in Janauary, 2013, a vote of 51 Senators could eliminate it. Mainstream leaders such as former Senator Evan Bayh have drawn increasing attention to the costs of the filibuster, and Common Cause has launched a lawsuit to challenge its constitutionality.
The 2012 election may have created a rare opportunity to get rid of the filibuster in an even-handed way. Because both parties control one chamber of Congress, even without the filibuster there would be time to adjust as neither side would be able to dominate the other. As the planet continues to warm and the seas continue to rise with no chance of a meaningful policy response from Washington, perhaps it is time for Senator Reid to do whatever he can to gut this antiquated and anti-democratic rule.