In the last two Congresses, Republicans have abused the filibuster to the point of creating an effective extra-Constitutional 60-vote requirement for any Senate action. Despite this, few Democrats seem willing to even seriously weaken the filibuster. They justify their refusal to do anything serious to control the problem by invoking the prospect of some future Congress when Democrats will be in the minority, and will need that strong filibuster as their only way to prevent some serious mischief at the hands of the then majority.
The flaw in this thinking is simple. It assumes that the Republicans will repay our forebearance now in allowing a strong filibuster to continue, with their own forebearance if and when they retake the majority. We don't have to guess to know that this simply isn't true. Their use of the Nuclear Option in the 109th Congress proves that they have no intention of allowing the filibuster to be used by any minority to block actions that they truly want.
We should not allow the filibuster to survive in any form that allows the Republicans any power to double-cross the nation in the future by using the Nuclear Option. Only the Legal Option -- embodying any filibuster in a public law -- allows sufficient protection against a double cross.
The problem
Many of us are quite reasonably concerned that Republican abuse of the filibuster in the last two sessions of Congress now means that, in effect, the Senate cannot act without 60 votes.
Now, even in more normal times, this new effective requirement for a super-majority for everything the Senate does, would be a valid concern. The Constitution sets forth specific cases in which a super-majority is required. All other cases are to be decided by a simple majority. To make this quite significant change to these very basic Constitutional provisions by requiring 60 votes for everything in the Senate, is to alter the balance among the chambers of the legislature, and between them and the president. It hardly seems wise to allow such a fundamental change to arise simply from a rule of the Senate, a rule that, while it has existed a long time, has never before been abused to the point of becoming an effective requirement for 60 votes on every measure before the Senate. Worse, and this is the point of my essay here, the fact that this major modification to the Constitution hasn't been done the right way, the way prescribed in that document to make changes to the Constitution, a way that requires all sorts of supermajorities all over the political landscape, means that the continuance of the filibuster rests on the whim of a simple majority of that body, which can, by a simple majority of just the Senate, at any time, via the Nuclear Option, rid itself of that filibuster.
But these aren't normal times. Now, in particular, Democrats need to be especially concerned with the balance between the House and the Senate. The new Republican House majority promises to engage in constitutional hardball on many fronts. Unilateral repeal of the ACA by the House, via an assertion of their power of the purse, is merely the one crisis most widely promised by their leadership. If the Republican minority in the Senate is allowed to block action by the Democratic Senate, there will be no legislative counter to a Republican House that will not have its majority hampered by any filibuster.
The Useless, but Oddly Effective, Deterrent
Despite this clear problem, there doesn't seem to be much support at all even among Democrats for anything that I think has any serious prospect of curbing the abuse of the filibuster that has produced the effective 60-vote requirement. Most Democrats seem convinced that they must hold back from any serious assault on the power of the filibuster, or they will not have available in some future Congress, when we are again the minority, any way to prevent the potentially serious mischief that an unbridled Republican majority might bring down on the country.
To me it seems obvious that the only really safe thing to do with the filibuster is to just kill it. It won't ever serve to protect the Democrats' ability to block things when we are in the minority, because the other side will just threaten the Nuclear Option to get around it whenever they really want to. They've already proved that they will do that, and we've proved that we'll let them. Yet the Republicans have also proved that they will exploit to the hilt any filibuster we allow them while we hold the majority, and we thereby cede most of the power of the majority when we hold it. To me it seems that there can be no deterrent effect from the threat that the Republicans won't extend us a strong filibuster in our future minority unless we grant them one in their current minority, because they've already killed that hostage. We know they won't respect our filibuster rights the next time, whatever we do, because they didn't the last time.
But the allure persists of some gambit that Democrats hope will let us have our cake and eat it too. Our side casts about for something that will weaken the filibuster enough that the other side won't be able to tie our majority in the Senate completely in knots, yet will still allow us to throw a knot in their path when they, at some future date after they are in the majority, are about to do something really horrible.
But we're just playing scholastic logic games when we put forward some scheme to square this circle, and craft a filibuster that is powerful enough for our modest aims, but weak enough that it won't serve their maximalist ambitions. We're trying to puzzle out some irresistable force vs immovable object paradox that doesn't have any real world solution. At the end of the day, this filibuster is either going to be powerful enough that we could use it to block some one horrible thing their majority would otherwise pass, in which case the other side will be able to use it to block everything, or it's going to be stop short of being able to hold any measure firmly and categorically to the need for a super-majority, in which case a Republican majority would always prove ruthless enough to never let us use it to block that horrible thing that has us worried.
Many of us seem to imagine that the problem has been that the filibuster is too easy. If only we made them hold the floor, or some such, then the filibuster would prove too much trouble for them, and they couldn't do it so often as they do now that all they have to do is announce the intention to filibuster. But if we make them hold 41 Senators on the floor without bathroom breaks until one of them cracks, which would kill the filibuster, you can be sure that they would respond in kind in that future case when we want to filibuster to stop that horrible thing they have planned. That filibuster will be killable by the need to use the bathroom as surely as we want to make theirs so killable. Being on the side of the angels has yet to abolish the need for regular bathroom breaks among those of us still toiling in this mortal coil.
If you impose some numerical limit on the number of times pers session either side can filibuster, or that individual Senators can vote to sustain a filibuster, then you either also control the ability of the majority to repackage a filibustered measure as a new measure, or you don't. If the latter, then that limited number of filibusters can be exhausted filibustering the same damn measure x number of times, and then it gets passed by reintroducing it after the minority has used its last filibuster, and the filibuster is powerless. If the former, the majority will introduce horrors just to use up the quota of filibusters. They can always think up enough horrors to use up any finite number of filibusters in the quota. You can be sure the Republicans would be more ruthless about that, and so would effectively defang our filibuster by waiting until we had exhausted our quota on the raft of appetizer horrors before they got down to the seriously evil shit they really want passed.
But if there's no limit on the number of filibusters, then there's no other way to limit the power of the filibuster, because it can then be used to tie up the the legislative calendar in knots. You could make it into the sort of veto the House of Lords gets, one that can only impose a delay, not really kill a bill. But if you allow an unlimited number of these, they're as deadly as a direct kill. The Senate has to be able to move forward. An unlimited power to delay is the same as the power to kill.
While I can't say categorically that every suggested filibuster reform must necessarily fail to achieve both horns of what seems to me to be an inherently self-contradictory design requirement, I can also say that I haven't seen any concrete proposal that even begins to address this basic problem. You either give the minority the power to force a 60-vote majority, or you don't. Mostly we err on the side of simply handing over this power, and I have yet to see a single proposal for a "Constitutional Option", changing the Senate rules at the beginning of the session to control this abuse of the filibuster, that does the job of correcting the abuse, because we simply don't want to face the need to get rid of this minority power. Bit if we don't get rid of it, we don't stop the abuse. The last four years have proven that.
My Solution, the Legal Option
If we can't safely let the filibuster live, but there is no reasonable chance of persuading enough Democratic weak sisters to the necessity of euthanasia, I think that there is still room to for everyone to agree that it's simply pointless to let the filibuster live on as a Senate rule. As a mere Senate rule, it is subject to the whim of a simple majority of just the Senate, which can act at any time to get rid of it, even in mid-session, by a simple parliamentary maneuver. No way should we allow the Republicans free use of the filibuster to take away the power of the majority, when we know with moral certainty that they will not reciprocate.
The next best solution if we are not agreed on my idea of the best option -- end it, don't mend it -- would involve letting the filibuster live, but in some form less subject to unilateral repeal by some future Republican Senate majority. Let's let it live only as a feature of a public law. The idea is that the filibuster, and any other current Senate rule that interferes in any way with majority control of that body -- holds, etc, -- should only be allowed to survive as a provision of a law approved by both chambers and the president, or 2/3 of both chambers, because then it will only be removable, in the light of public scrutiny, not by some backroom, Gang of Fourteen deal, but by those same majorities.
Sure, that idea could result in gridlock, no such law would pass, and the filibuster would be dead. To me, that possibility is a feature, not a bug. But even people who think the filibuster is a good idea have to admit that its benefit to our party rests, will rest as long as the thing is just a Senate rule, on the willingness of some future Republican majority to control its desire to get its way at all costs and behave more selflessly than they did in the 109th. Why not secure that hope in good behavior on a wider base, and establish the filibuster in such a way that it would take more entitities, acting in greater public scrutiny, to agree on killing it? If the law embodying the filibuster on this new footing failed to pass, wouldn't that failure tell you that perhaps your hope in Republicans behaving a certain way when they are in the majority was ill-founded, that there isn't really a national consensus on the filibuster that you can rely on to enforce their future good behavior?
Even if you believe that some compromise is possible where I see no possibility, that some filibuster could be fashioned that was powerful enough to do what we wanted from it, but at least less powerful than what the Republicans are using it for now, if you believed that you could come up with something whose strengths and weaknesses both parties would respect into the future and past a shift in control of the Senate -- aren't we more likely to reach that happy medium as a result of give and take over a new filibuster law, than as a result of the way we have done it, hasty, closed-door deliberations over the organizing resolution? As it stands, Republicans have no reason to not maximize their position on how powerful the filibuster ought to be. They can hold out for as powerful a filibuster as you can imagine, and they're not mortgaging away their power as the future majority. They have no intention of honoring whatever terms we put the filibuster on in the organizing resolution for the 112th Congress, so they can wax maximal today on the absolute beauty of allowing the minority an absolute veto on everything. Take away the ease of changing the terms once they are in the majority, and we'll see right now how they really feel about the filibuster itself, not just their own untrammeled power, which we already know they love with a passion that's intense. We might find in them the strongest opponents of a strong filibuster. That might not be good news for you people who see some good in the institution of the filibuster, but don't even you people want your eyes opened now about what the Rs really think of the filibuster before you extend it to them in some mistaken notion that they really are devoted to it, and will surely act accordingly when they are in the majority?
A "Constitutional Option" that deserves that name
Ultimately, I think that the question of whether we should have a novel, 60-vote requirement for the Senate to do anything, is of sufficient weight that it shouldn't be allowed unless we change the Constitution to that effect. Either the Senate returns to being a body controllable by its simple majority, or it has to cede its place as a co-equal legislative body. The Congress has the duty to get the people's business done. We can't put off the accomplishment of that duty until such time as one party or the other gets a filibuster-proof majority in the Senate, and establishing that as a requirement has the inevitable effect of sidelining the Senate. You may think that a good outcome. I would even agree with you that we would be better off if the Senate were to become a sort of executive council, a body that oversaw the president in running the executive branch, rather than remain a co-equal branch of our legislature. But that would clearly require a change to the Constitution. Until and unless we get that change, the Senate has to be able to function, it has to be able to move forward after every election with the majority in charge and able to get the people's business done. A filibuster that has evolved into a universal requirement for supermajorities for every vote, is not compatible with getting the people's business done.