Filibuster devolves into threat

Sorry, folks, a majority just isn't good enough anymore.

As Senate Democrats tried to begin debate on financial regulatory reform this week, 57 were in favor and only 41 opposed. That does not, however, add up to victory in the U.S. Senate, where 60 votes are needed to cut off a filibuster, and almost everything is at risk of being filibustered. As a result, a mere 41 senators can block nearly everything.

To any observer outside the beltway, this is shocking to say the least. Despite a global financial meltdown, the resulting economic pain on Main Street and a daily succession of Wall Street outrages including a fraud case against Goldman Sachs, could regulatory reform really fail even with the support of 57, or even 59 senators?

Meanwhile, rumblings of a filibuster are growing over President Obama's not-yet-named nominee to the Supreme Court. Even a liberal nominee would make no change to the current 5-4 split on the court. But Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, refused to rule out a filibuster, declaring only a "mainstream" nominee could prevent it.

These senators are not operating under any pretext that they need more time to deliberate and consider how to vote. Instead, the goal is to prevent debate entirely.

Originally fairly obscure, the filibuster has grown out of control, taking on a dominant role in Senate lawmaking. Today filibusters are not just reserved for the biggest fights in Washington, but everyday business. In fact, since the current session of Congress began, there have been 50 votes to end filibusters. The 50th came last week when Sen. Tom Coburn moved to block an extension of unemployment benefits for jobless Americans. (Coburn had placed a hold on it before Easter recess, leaving 200,000 families without a paycheck while Congress went on vacation.)

Senators no longer take to the floor to filibuster. They merely threaten it. By making the filibuster standard operating procedure and setting the bar at 60 votes before holding an up or down vote, the Senate has rigged the game against progress and in favor of endless obstructionism that paralyzes the entire government. This arcane tactic may earn the chamber more attention from the president and colleagues in the House, but it also cements its reputation as a swamp of inaction.

The filibuster has always been remarkably undemocratic (just 21 states can provide the necessary 41 senators), but some politicians argue that protecting the rights of the minority is exactly the point. In reality, the Senate is already designed to do this through equal representation of small states -- and with remarkable power. When the first Senate met, the population ratio of the largest state, Virginia, to the smallest, Delaware, was 12 to 1. Today, California has 70 times the population of tiny Wyoming. The minority is very well-protected.

The filibuster is a political tool, not a part of checks and balances. Democrats and Republicans both know it. It has been used by both sides to block up or down votes. Progressives note how the threat of a filibuster took the public option off the table for health care reform, endangers the Employee Free Choice Act, and delayed historic civil rights legislation until it was long overdue. Conservatives balk at failed oil drilling in Alaska's wildlife refuge, the defeat of Robert Bork, or attempts to reform Social Security.

It also rests on extremely shaky constitutional ground. Sure, the Senate can make its own rules, but no Senate rule can break the law or violate the Constitution. (Try adopting a rule that barred women senators from voting on Tuesdays.) The Constitution explicitly lays out the five different actions that require a supermajority vote, but otherwise calls for a majority to do business. The right of a determined minority to perpetually delay a vote violates the democratic principle of majority rule.

The unprecedented abuse of the filibuster is getting worse, hurts both parties, and cannot be tolerated. With all the work that is left to do this year, including finance regulatory reform, the appointment of a new justice to the Supreme Court, and more, America cannot afford rampant obstructionism. The Senate created these undemocratic rules, and now it needs to end them.

Edgar is president and chief executive of Common Cause, a nonpartisan government watchdog organization. and a former member of Congress from Pennsylvania.