The Procedural Rule That Keeps the Senate Tied in Knots
No matter who wins the 2012 presidential election, the minority party can thwart his agenda.
A single sentence in the rules of the Senate stands between whoever is in the White House next year and his chances of enacting the agenda that got him there.
The rule, which requires 60 votes to cut off debate and force a vote, has been a roadblock for presidents since it was adopted in 1917. But its use has ballooned. From 1917 until the end of 1960, votes to try to end debates were taken just 23 times. Since 2001, however, the rule has been invoked 416 times (in 230 cases, the 60-vote threshold was met, clearing the way for a vote on the bill in question).
The growing use of the rule is accompanied by increased calls for scuttling it. Republicans, who control the House, are especially frustrated now because Democrats in charge of the Senate have relied on the 60-vote standard to keep the GOP at bay. Republicans in the Senate have, of course, used it just as effectively to keep Majority Leader Harry Reid's Democrats in check.
But the chances of undoing the rule? Nearly zero. Lawmakers from both parties know that any stay in the majority is short-lived, so those now in power -- the Democrats -- won't agree to ditch the filibuster because someday they'll be in the minority and will want to use it.
It will be similarly tough to merely soften the filibuster rule, though some senators would love to try. The Senate is Washington's most tradition-bound institution, and changing the rules there is intentionally difficult. The last change, in 1975, reduced the required number of votes to end debate from 67 to 60.
So the filibuster will survive. Big parts of the president's agenda will not. It doesn't matter whether President Obama wins another term or Mitt Romney replaces him. And it doesn't matter which party holds the majority in the Senate. The 100-member body will still be closely divided and polarized.
Look for heavy use of the filibuster next year to slow work on tax reform, energy policy, deficit reduction, entitlement reform and budget changes, as well as to hinder efforts to retool existing laws on health care and oversight of financial markets.
The founding fathers modeled the upper chamber on the Senate of ancient Rome, as a deliberative body removed from the pulse and temper of the common people. Though it was not called a filibuster at the time, one of the first users of the technique was Cato the Younger, an adversary of Julius Caesar.
According to The Senate of the Roman Republic, by the late Sen. Robert C. Byrd (D-WV), one rule was that no business could be conducted after dusk. That gave Cato an opening. Near dusk, Cato would take the floor and speak until nightfall, sometimes reciting epic poems, thereby preventing business from being transacted. In doing so, he thwarted some of Caesar's wishes.
Today, of course, many Americans know about Caesar. Cato the Younger, on the other hand, is little more than an asterisk in history.
The filibuster, though, lives on, much to the dismay of a long line of residents of 1600 Pennsylvania Avenue, to the delight of the underdog party of the moment in the Senate, and to the confusion of nearly everyone else schooled in another long-standing tradition -- majority rule.