Fighting Democrats could beat the fillibuster, and more generally beat the Republican's "41-59 majority" and turn it back into the 59-41 majority it's supposed to be. Turn it back to where the Dems could do what they were elected to do. Of course, we don't have very many Dems willing to fight, but suppose they decided to fight. How could they do it?
Here's a strategy based on 3 insights that I got from reading Congressional Quarterly's "Congress 101", on the fillibuster and on the legistlative process:
(1) As we all know, in the old days, fillibusters stopped all Senate business. Those conducting the fillibuster had to keep talking, all day and all night or as long as the majority leader kept the Senate in session. The whole nation could see them stopping the business of the country, sometimes by reading the telephone book in order to just keep talking. If any moment arrived when there was no one wishing to speak, they could proceed to the vote, so the fillibusterers had to keep talking. Naturally this was hard to do both physically and in terms of PR -- it had to be reserved for a few key issues. It couldn't be used to stop every single thing the majority tried to do.
So what has changed? The initiation of "double-tracking". Starting in the late '70's, the CQ fillibuster section tells us,
"leaders often shelved the disputed bill temporarily, with members' unanimous consent, so that the Senate could turn to other matters. That tactic, known as double-tracking, `kept the filibuster from becoming a real filibuster,' as one senator said."
The CQ legislative process section adds
"On controversial bills for which agreements cannot be reached ahead of time, the majority leader may put the Senate on a track system. Tracking permits the Senate to have two or more bills pending simultaneously, with a specific time of the day designated for each bill. If one bill is being filibustered, the Senate can turn to another and thus not hold up all floor action."
Got that? Tracking is not a part of the Senate rules -- it is a leadership decision, and also require's members' unanimous consent. Which means that at any moment, the Dems could change things back to the old system of real fillibusters. I'll discuss below how this fits into a larger strategy.
I imagine the Dem response to getting rid of tracking: "Oooooh, but that means the Republicans would shut down all senate business when they fillibustered a bill. We can't have that." Well what the hell do the Dems think the Republicans are doing right now? They are shutting down every bit of business that the party with the 59-41 majority wants to pass. An end to tracking might also shut down whatever Senate business actually has bipartisan support. Well, Democrats, that tiny portion of Senate business can wait, until you break their hold on your balls and on your ability to do anything that you were elected to do.
(2) Suppose the Dems wanted to change the fillibuster rules, what would they have to do? The CQ fillibuster section tells us:
"In 1975, however, the liberals tried again to tighten restrictions on debate. They succeeded in easing the cloture requirement from two-thirds of those present and voting (a high of sixty-seven votes, if the full Senate was there) to three-fifths of the Senate membership (a flat sixty votes, if there were no vacancies). The old requirement still applied for votes on changes in Senate rules."
So, the Senate rules can be changed by 2/3 of those present. And the way the Senate operates, "normally there are few senators on the floor, except when crucial votes occur" (from the CQ legistlative process section). So, since Dems control when the Senate is in session, that means that, in principle -- I'm not arguing they should do this yet, hold on -- but in principle, they could have a sneak attack where the Dems suddenly show up at an agreed time and change the rules (if the Repub's tried such a sneak attack, I think the leadership could just end the session, but I'm not certain).
Now agreed, a sneak attack would look bad to the public and probably end up hurting the Dems more than helping. But, the threat of a sneak attack could be another tool in an assault on the 41-59 majority, see below.
(3) Another way the Republicans are exercising their "majority" is with holds, which prevent Dems from proceeding on nominations for judges and for executive branch positions. Here's a prime example from Ezra Klein:
"The difference between Democrats and Republicans
Imagine that after 9/11, a liberal Senate Democrat had quietly placed a hold on George W. Bush's nominee to lead the Transportation Security Agency. The problem in this case wasn't qualifications. The nominee was a former airport security chief, FBI officer and university professor. The problem was that the airport security chief wouldn't say that he wanted the Transportation Security Agency employees to unionize.
Then an Islamic radical tried to blow up a plane.
The Democrats would have been hammered for holding up the TSA chief's nomination. Bush would have made a recess appointment. Republicans would have gleefully campaigned against the liberals who would have left our air travelers defenseless.
That same story just played out, but the parties were reversed. It was Barack Obama who nominated Erroll Southers, the former airport security chief and FBI officer, to lead the TSA. And it was South Carolina Republican Jim DeMint who blocked his nomination over unionization. Did DeMint back down after an al-Qaeda-linked radical attempted to detonate a plane? Nope. Did Obama step up and make a recess appointment? Nope. Did Democrats make a major issue out of it? Of course not.
Instead, Erroll Southers formally withdrew his nomination today. Score one for DeMint, and another against the Democrats."
So what does CQ (legislative process section) tell us about holds? "An informal practice allows senators to place `holds' on bills for varying lengths of time." It's an informal practice. It's a gentleman's agreement (apologies for the old-fashioned one-sex term, but that's where these practices come from). It's not a part of the Senate Rules. The Dems could turn it off at any time.
A Strategy
OK, so how do these three insights weave into a strategy? If Democrats were willing to fight: The Dems could start a sustained public campaign demanding that the public deserves an up or down vote on bills to attack the key problems facing the country -- jobs, health care, energy -- and on nominations to fill positions to allow government to attack these problems. That the urgent problems of the country require action. This could all be part of a more general reminding of the country of the huge problems left us by 8 years of Republican rule and of what the Democrats were elected to do. They could admit it was a mistake to spend months negotiating away the parts of health care reform the public most favored, i.e. a public plan, and negotiating crazy things like the Nebraska Medicaid bribe, just to try to accomodate Republican stonewalling, Republican determination to stop the Democrats from doing what they were elected to do.
Instead, the Dems are going to take on Republican stonewalling directly, to allow the country's business to proceed by majority rule again as called for in the Constitution, to allow the vital business of the country to proceed again. And to do this:
(1) They're going to immediately end tracking. If the Republicans want to stop the nation's business, they're going to have to do it in public, on TV and the internet, day and night, and with a constant PR push of the Dems for an up or down vote on the nation's urgent business.
(2) If the Republican's insist on stopping all Senate business, the Democrats will change the rules to allow the business of America to proceed (by using a "sneak attack").
(3) Like fillibusters, holds were a courtesy in a "gentleman's" Senate, meant to be used occasionally and with disgression, not to prevent the government from filling its positions and functioning. If the Republicans insist on using this as a way to stop government business, if they are stonewalling, if they are in full-scale war on the ability of the Democrat government to do what it was elected to do, they have violated these "gentleman's agreements" and we are no longer going to honor them.
(4) The Senate health care bill is going to be redone to be the bill the Democratic majority would have passed, the bill the public supports, and we're going to pass it! If the changes can be made by reconciliation, great; but one way or another, we're going to pass them.
Of course the Dems won't do this. But at least this information could counter all the pundits who explain how the Dems are helpless because of the arcane Senate rules and the fillibuster.
And why exactly won't the Dems do this? What are they afraid of? "If we do this, the Republicans will get mad"? "The Republicans won't cooperate with us"? "The Republicans will go to war with us"? Tell me, spineless Dems, how exactly would that be different from the situation you're already in?
The Republicans are at war with you. Fight back!