With Congress finally going back to work this week, its one overriding task will be to keep the nation from plunging over the so-called "fiscal cliff," a combination of automatic tax increases and budget cuts. We’re in this situation because of our lawmakers’ inability to agree on much of anything else previously.
Whether a lame-duck Congress can act to prevent what some political observers are calling a potential disaster is anyone’s guess. We’ve had an election, and what the people did, in effect, was to maintain the status quo — a Democratic president and Senate and a Republican House.
Once we get past this crisis, if indeed we do, one of the first orders of business for the new Congress, even though it will look much like the old Congress, may be to change an important procedure that has been used to maintain the gridlock of recent years.
That would be the filibuster, the Senate’s odd rule that allows a single lawmaker to forestall the will of the majority.
Most of us have seen the classic 1939 movie, "Mr. Smith Goes to Washington," in which a senator played by Jimmy Stewart gallantly holds the floor hour after hour to stop special interests from killing plans for a boys camp. He reads recipes and even a telephone book until he’s hoarse and exhausted but finally breaks down the opposition.
The reality is seldom as heroic. The longest 1-man filibuster in history was that of segregationist Strom Thurmond, who spoke on the floor for 24 hours and 18 minutes in 1957 to delay civil rights legislation. The practice did not appear until the 1840s and then only because the Senate, unlike the House of Representatives, had no rules for cutting off debate. But, according to an Associated Press article in 2010, filibustering wasn’t considering a major problem until World War I. President Woodrow Wilson, frustrated because of the lack of action on war measures, then got the Senate to approve a rule under which a two-thirds majority could bring about "cloture," or an end to debate. In 1975 the rule was amended to drop the majority needed to three-fifths, or 60 senators.
Today a member doesn’t have to bother with actually debating like the fictional Sen. Smith or the real Sen. Thurmond. He or she simply has to register an objection to a legislative matter or nomination, which is then effectively stymied. Supporters can file for cloture, and a vote is taken. If 60 senators agree, 30 hours of debate precedes a final vote.
The process can be complicated by amendments, possibly requiring additional cloture votes.
Therefore, the two major political parties have increasingly encountered difficulty in passing controversial legislation through the Senate when they lacked a 60-vote majority.
The New York Times pointed out last week that between 1917 and 1974 the number of cloture motions filed was never more than 10 per 2-year session. When the Democrats were last in the minority, 2005-06, according to the Senate historian’s office, the number of cloture votes was 68. Since then, though, the number has increased dramatically — to an average of about 130 per session.
Republicans argue they have no choice because the majority leader won’t allow them to file amendments. Democrats counter that amendments would only be offered to increase the opportunities for filibuster.
This partisan stalemate leaves us with a paralyzed Senate, and that won’t change in 2013, even though Democrats will increase their majority to 55-45.
In 2011, three Democratic senators offered rules changes that would have limited filibusters to final floor votes and increased the number of senators needed to hold the floor. It also would have required senators to stay on the floor and actually debate to block legislation or a nomination.
The theory is that the U.S. Constitution allows such rules changes by a majority vote but only on the first day of a new congressional term. A handful of Democrats refused to go along in 2011, and the effort died. A more modest reform dealing only with confirmation of nominations, which originally had the approval of both majority and minority leaders, also failed.
This time Majority Leader Harry Reid, D-Nev., favors the constitutional option (also referred to sometimes as the "nuclear option" because of its explosive nature) so a major battle is brewing. And Sen. Jeff Merkley, D-Ore., will offer the same rules changes he and others proposed two years ago.
Some Democrats may still be skeptical. They know that the filibuster helped them when they were the Senate minority, and a major change in Senate rules could set a precedent that might haunt them someday.
However, the best of the proposed changes is one requiring a senator who wants to filibuster to get up on the floor and do the talking. Otherwise, the whole process is a sham.
A critical question for the Democrats is whether this battle, which surely won’t reduce partisan bickering, is worth fighting. For the nominations process it might be because that involves only the Senate. But legislation must also go through the House, where a Republican majority makes the rules.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at email@example.com.