[W]e need to take on the way the Senate works. The filibuster, and the need for 60 votes to end debate, aren’t in the Constitution. They’re a Senate tradition, and that same tradition said that the threat of filibusters should be used sparingly. Well, Republicans have already trashed the second part of the tradition: look at a list of cloture motions over time, and you’ll see that since the G.O.P. lost control of Congress it has pursued obstructionism on a literally unprecedented scale. So it’s time to revise the rules.
Paul Krugman, "Pass The Bill" - New York Times, December 17, 2009
The bill Krugman wants to see passed, however imperfect, is the health care reform bill that Howard Dean calls "hocus pocus." I'll return to that question in future posts, I'm sure, but today I want to vent on why 60 is such a magic number, and why Senators from states with populations smaller than most large American cities get to wield veto power over the will of the great majority of Americans.
It's called The Filibuster.
Wikipedia nicely traces the piratical origins of the word, from the French and Dutch words flibustier and vrijbuiter... freebooter. "Pirating or hijacking debate" is the usage we are looking at, and though the current culprits are the Republicans and their Democratic (or "Independent") enablers, it wasn't always the GOP that had a corner on this market.
Barbara Tuchman, in her portrait of the world before the First World War, "The Proud Tower" (1962), dedicates the better part of a chapter on the United States to a long-forgotten parliamentary firestorm over the "silent - or disappearing - quorum." She explains:
It was a practice whereby the minority party could prevent any legislation obnoxious to it by refusing a quorum, that is, by demanding a roll call and then remaining silent when their names were called. Since the rules prescribed that a member's presence was established only by a viva voce reply to the roll...
In other words - and Tuchman provides jolly examples - Congressman Cretin (generic moniker) could be sitting in full view of the Speaker, but if he chose to deny his presence, he and his minority cronies would simply remain silent and could not be considered present. Hence, no quorum.
Until the day the rules changed. The day when the Speaker of the US House of Representatives, Thomas B. Reed, Republican of Maine, stood his ground against a fuming and foaming pack of Democratic filibusterers. These were the days when "the party of Lincoln" was on the side of the angels, and the Democrats included numerous unreconstructed racists bent on enforcing poll taxes and opposing the seating of elected black politicians.
I recommend reading Tuchman's account for the full drama of the confrontation, where if Reed saw Congressman Cretin, he checked him as present, whether or not Cretin wanted to be recognized. But the point is this: a ludicrous rule whereby physical presence meant nothing unless you said "here" or "present" out loud was shown for what it was: ridiculous, and unworthy of a democratic forum of a great power.
Fast forward to 2009 and the debate over health care in the United States. The institution that haughtily calls itself "the world's greatest deliberative body" lives in fear of the one Senator who threatens to read ad infinitum from the Washington D.C. telephone book ("Abigail Abbey, Abner Abbey, Archibald B. Abby...") as he prevents debate on the provision of health care to American citizens? Please. Fear of filibuster has replaced the Hollywood image of righteous filibustering. You just have to utter the F(ilibuster) word and the party with healthy majorities in House and Senate suddenly goes weak at the knees and caters to the lowest denominator, meaning 1/60 (or actually 1/100 of the full Senate complement). Strange math.
As Paul Krugman reminds us, the US Constitution doesn't mention filibuster, and there's no right to hijacking debate in the Bill of Rights. The US Declaration of Independence was a stirring call against the tyranny of a king. What about the very real tyranny wielded by a minority of one, Senator Sixty, whoever he is today? Yesterday it was Joe Lieberman, today it's Ben Nelson; who will be the courted sixtieth filibuster-avoiding freebooter tomorrow?
Next time you hear about the United States lecturing Foreign Country X about "good governance," read how Byzantium lives in the Senate Rules Committee and consider how much the US has to learn about transparent democratic governance.
(UPDATE December 20: Today Krugman suggest ways to reform or eradicate filibuster)