On Seizing Opportunities

The only real legislative weapon in the Republican arsenal right now is the filibuster. They set a record for filibusters last session, and we can expect that they'll set another over the next two years. Given that the Republicans in Congress have adopted the same essential strategy as those in the California state legislature - we will block anything that does not give us everything we want - the Democrats are going to have to plan accordingly, particularly with respect to health care reform. I assure you that if national health insurance will need 60 votes and the Republican leadership will oppose Obama's plan - no matter what. So unless you want to watch the sad scrambling we saw around the stimulus package all over again, the filibuster is going to have to be dealt with.

There are, as I see it, two different possibilities: you can either go around the filibuster or through it. The first is to use the budget reconciliation process, which would only require 51 votes rather than 60. The Republicans see this possibility and are already making noises about wanting to "work with Obama" - which means smile a lot during meetings until it's too late to go to reconciliation and then stick the knife in. This may be what Obama uses to do health care.

But there are other issues than health care - namely the environment, and judicial nominees. While it's possible that climate change legislation could go through reconciliation, I wonder whether the Senate Dems will be willing to use reconciliation for everything. Besides this, the Republicans are already suggesting that they'll filibuster Democratic judicial nominees.

Now I think the filibuster should be done away with. The abuse of the institution has become so egregious that any jusitification for it is no longer sufficient. The Democrats have NEVER been as aggressive in using it, so it has essentially become a Republican veto on government policy - which is just ridiculous. And it is precisely on the issue of judicial confirmations that I suspect the issue will come to a head. It is also where I think Obama will have an opportunity to kill the filibuster - i.e., the "nuclear option."

In 2005 the Republican majority in the Senate (with 55 votes) threatened to ignore the Democratic filibuster and change the rules to make it impossible. The Republicans were screaming on the TV about wanting an "up or down vote." The so-called "Gang of 14" avoided the implementation of the nuclear option, but you can see where I'm going with this. If the Republicans filibuster say, a Supreme Court nominee, then the Democrats will be able to first claim that they want an up or down vote (playing quotes from the opposition would be fun), and when the Republicans refused to concede the issue, invoke the nuclear option themselves. Hell, Obama wouldn't even have to be the bad guy - he could leave it to Harry Reid to play Dirty Harry. The Democrats could even be reaonable and reduce the requirement to cloture to 55 votes, a proposal that was floated in the 70's.

The Democrats are going to have to confront this problem eventually. They're going to have to crush the Republican minority, or see everything they want to do blocked by an unreasonable pack of loons. And it's not like the filibuster is in the Constitution or anything. I'm hoping the Democratic leadership has the wisdom to do the right thing.