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By Tom Cushing

Mr. Votes Goes to Washington (but not quite far enough)

Uploaded: Nov 23, 2013

Amidst typically strident DC hyperbole, the Senate this week took a significant step toward getting things done. It amended its filibuster rules to overcome their evident abuse (but calling that a "nuclear option" puts it right in there among fiscal cliffs, freedoms-to-farm, and some might say, affordable care). It evoked the expected dire predictions, but I just don't see it. Partisan play-making aside, this is just sound governance – whoever is in charge. In fact, they should have done more to limit this dilatory 'minority rules' device.

The filibuster has a long if undistinguished history, dating from the Roman Senate. When Cato overused the procedure in an attempt to thwart a proposal that mattered to Julius Caesar, the Senator was promptly flung into the hoosegow. Both 'filibuster' and 'hoosegow' are derived from Spanish terms, the former related to piracy.

In US Senate history, the filibuster was traditionally used quite sparingly among the gentlemen thereof. It required that the filiblusterer actually take the floor and talk for as long as he could, to delay action on an appointment or a piece of legislation, and at least guarantee that the minority's arguments would be adequately heard, in newsworthy fashion. It was justified in part because the House has no similar device to allow dearly-felt, if unpopular, positions to be aired. Decorum ruled; it was understood that the device would only be employed in extreme cases – and so it was.

The Senate's current version of the rule requires 60 votes to invoke "cloture" and end debate, and force a majority vote. Remarkably, it also doesn't even require the filibusterer to actually speak, but only threaten to do so. The upshot is that, in a closely divided body, the minority party can effectively hamstring the majority by any member's merely expressing intent to speak, and not actually going to any effort to do so, a la Jimmy Stewart's famous, fictitious gambit to save his name and his boys' camp proposal.

The most famous instance in my memory involved 19 Senators who talked for 57 days to resist passage of the Civil Rights Act of 1964. Said GA Senator Russell: "We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states." That effort was partially successful, as a weakened bill eventually achieved the then-67 votes needed for cloture.

The filibuster has, however recently become a cornerstone of parliamentary maneuvers intended to hamstring the Obama Administration's attempts to appoint Executive Branch leaders, and federal judges. Lest anyone remain alive who considers recent history to be political business-as-usual, appointment filibusters have been used 168 times in some 226 years of US history (less than once/year, obviously). 82 of those occasions have occurred since Mr. Obama assumed office in 2009. That's more than 16 times/year, meaning that the previous frequency was actually much less: 0.38 times/year. Put yet another way, the current Republican Senate minority invoked it 43 times more often than all of its predecessors, of either Party.

As your Mama likely told you, if you abuse a privilege, you risk losing it. That's what happened this week, as the Dem majority finally changed the Senate's rules to require only a majority vote for cloture, and only on Executive and most judicial appointments. The old rules rule on legislation, and Supreme Court nominees --including the "threat is sufficient" requirement. Some nuke. Some explosion.

Most of the arguments against the change revolve around its formerly exceptional use, as well as dark threats that the Dems will miss the process if/as/when they're back in the minority. Of course, that would require both a GOP Senate majority AND a Republican President. Setting aside all the things the GOP is doing to ensure THAT confluence never occurs, the change is still good government, regardless of who's in power.

The filibuster was never meant to convert the 'advise and consent' role of the Senate on nominations into 'refuse and constipate' according to the minority's fond wishes. Elections ought to mean something – however they come out – and the Chief Exec should be able to appoint the team with a minority Party check, but not a veto, in the process. Similarly with sub-Supreme judges, albeit they enjoy lifetime tenure. The issues ought to go to competency, but not so much to political philosophy, and the new rules continue to allow an adequate airing of those concerns.

Indeed, I would go further, and remove the 'mere threat' criterion. If it's important enough to filibuster, then that purpose is served by actually airing the arguments and monkey-wrenching the legislative process. The arguments on the merits would be exposed to a public sniff test that's now absent, and the actual efforts required to talk incessantly would be good political theater all by itself. Moreover, such a requirement would mean that more matters would come to a majority vote in public, rather than die for want of a 60-vote super-majority. Senators then can be better judged by their actions. That's improved transparency, and better accountability.

Ending the practice of nominees, who have after all, agreed to participate in public service, being hung out to dry as pawns to achieve other political ends (like Sen. Graham's threat to hold-up nominations until he's satisfied on Benghazi), is an unfettered Good Thing. Hopefully this half-way Senate will like the new system well enough to broaden it to its appropriate conclusion. Mr. Smith, along with Joanne Q. Public, would approve.