Filibusted?

After two years of accelerating frustration among the Obama administration and the Democratic base, a few younger U.S. senators—led by Claire McCaskill of Missouri, Tom Udall of New Mexico and Jeff Merkley of Oregon—are trying to put an end to the filibuster as we know it. But these members of the new guard still worry that the Senate’s two party leaders, Democrat Harry Reid of Nevada and Republican Mitch McConnell of Kentucky, will cut a separate deal that does not go far enough to reform what many call a flawed procedure.

Under a rule introduced in 1975, U.S. senators who want to filibuster no longer have to actually talk on the Senate floor. They simply must register intent to filibuster and then a supermajority of 60 votes is needed to cut off debate, as if an actual filibuster is taking place.

For instance, the 9/11 Health and Compensation Act, which will provide medical assistance to first responders at the World Trade Center, was held up four years before President Barack Obama signed it into law last week. In fact, Republican Sen. Tom Coburn of Oklahoma single-handedly delayed the measure yet again this past December—and Coburn never had to actually speak a word on the Senate floor.

Last month, every Democratic senator except the retiring Christopher Dodd of Connecticut signed a letter to Majority Leader Reid calling for changes to the filibuster.

The relatively new 1975 filibuster procedure impacted multiple pieces of legislation during Congress’ last session, on issues varying from health care to the stimulus—and all because a single senator could hold the Senate hostage with merely a threat to conduct a filibuster. And it wasn’t just Republicans that exploited this procedure; a single Democrat could—and a couple did—extort the Senate for special goodies.

As a result, Democratic efforts on many issues over the last two years dragged on in the Senate. They usually were enacted quickly in the House, which has no filibuster. And in many cases, laws more often than not didn’t resemble Democratic bills when they finally were passed by the entire Senate.

As a result, a “make them filibuster” movement has sprung up around the nation, promoted by the liberal blogosphere and some House members. A new effort by Senate Democrats Udall and Merkley and others has generated cheers in these same quarters.

Still, news coverage of the effort continues to confuse traditional filibusters with post-1975 filibusters, and there is also hesitation among politicians on how to change the system. And some critics argue, too, that the proposed reforms themselves are flawed.

When Reid became majority leader, he was in a poor position to urge filibuster reform because, as minority leader, he had vociferously defended the filibuster as a way to stop judgeship nominations by former President George W. Bush. But the Nevada senator had to yield to rising sentiment among his fellow Democratic senators for change.

Various reports suggest new filibuster changes will require a bill to first reach the Senate floor, whereupon senators would have to collect together at least 40 votes to initiate a filibuster. And even then, the senator would have to remain on the floor, talking, to continue it.

As the National Journal reported recently, this is a big change that would speed up the legislative process: “Current rules … require the majority leader to file a cloture [ending debate] motion to overcome an anonymous objection to a motion to proceed, and then wait 30 hours to for a vote on it.”

But as it turns out, no change to the rules is even needed to reform the filibuster, because the procedure was implemented in 1975 without the rules actually being amended. According to the Senate Historical Office, the rules have never been modified to reflect the 1975 filibuster innovation: “The only rule that the Senate has regarding filibusters and cloture is Rule 22, which sets a three-fifths vote for cutting off debate, which was adopted in 1975. The ‘two-track’ process is simply a leadership tactic and is not codified in the rules.”

So the Senate could end the filibuster simply by announcing the procedure is being discontinued, without any need of a rules change. Still, the younger reformers are calling for Byzantine changes—such as the 40-vote threshold—instead of simply ending the 1975 system.

Whether this would actually solve the filibuster problem is far from certain. And even then, if all the pressure and activism on behalf of filibuster reform results in only minor changes, frustration in Democratic ranks and among voters—who’ve given Congress a lowly 19 percent approval rating according to the RealClearPolitics website—will only grow.

What’s worse, if Reid and the Democrats drop the imaginary filibuster, it will still leave the traditional filibuster in place, something that is also poorly understood.

In the end, it’s likely that Reid has no intention of eliminating filibusters altogether; only very reluctantly during his re-election campaign did he agree to do something about imaginary filibusters, and he has said nothing to suggest he wants to do away with all filibusters.

But what a Reid/McConnell pact would look like is unclear, although a Democratic aide has confirmed that talks between the two parties are ongoing.

In a New York Times story earlier this month, former vice president Walter Mondale, who during his career as a Minnesota senator tried hard to do away with the filibuster, recalled that the 1975 changes were done in the name of reform but resulted in unforeseen circumstances. “Reducing the number of votes to end a filibuster, perhaps to 55, is one option,” Mondale wrote. “Requiring a filibustering senator to actually speak on the Senate floor for the duration of a filibuster would also help. So, too, would reforms that bring greater transparency—like eliminating the secret ‘holds’ that allow senators to block debate anonymously.”

Senate Democrats, who introduced a rules-reform package last week, hope to have a vote on the changes later this month after lawmakers return from recess. If they do pass, then for the first time in years filibustering lawmakers will finally have to talk the talk on the Senate floor.