Some of the most polarizing issues of the era have been approved by
narrow votes in the U.S. Senate.

The war over Kuwait was authorized by the Senate in 1991 on a 52-47
vote. Clarence Thomas’ nomination to the U.S. Supreme Court was
approved 52-48 that same year. Two years later, President Clinton’s
economic program won approval with 51 votes—including a
tie-breaking vote by Vice President Al Gore—against 50 in
opposition.

But that was then. Today, those simple majorities would doom their
measures.

In the second year of George W. Bush’s administration, 56 of the 100
senators voted for an economic stimulus package, which therefore failed
to pass. In 2008, 51 senators voted for a windfall profits tax on oil,
which failed to pass.

The reason is the U.S. Senate’s devotion to a procedure called the
imaginary filibuster. It has undercut the body’s ability to legislate,
but senators seem unwilling to drop it.

The filibuster—the real one—has been with the
Senate for 203 of the nation’s 233 years. Though Senate Majority Leader
Harry Reid and others like to describe it as a tradition established by
the founders, that’s nonsense.

Both the founding Senate and House both could cut off debate with a
simple majority vote. But in 1806, the Senate dropped the procedure
that made it possible to operate that way. Thereafter, senators could
talk as long as they wanted to, and there was no way to stop them.

During World War I, when appointed senators were giving way to
popularly elected senators, and there was progressive sentiment for
more democratic processes, a rule was finally adopted under which
filibusters could be ended with a two-thirds vote. All during the
1950s, 1960s and 1970s, Democratic Party leaders tried to reduce that
threshold or do away with filibusters altogether.

That sentiment is still strong at the Democratic grassroots around
the nation, where the filibuster is identified with racism. In 1964, a
Senate filibuster against the Civil Rights Act lasted for 57 working
days. But Democratic congressional leaders have made their peace with
the procedure, though they did succeed in reducing the threshold to
three-fifths, which in today’s 100-member Senate is 60 votes.

A real filibuster can be dramatic. Senators who want to hold the
floor have been known to use catheters. Cots may be brought in so
senators can sleep near the hall.

But all that applies to actual filibusters. What’s clogging
up the Senate these days is threatened filibusters that don’t
actually happen. This is the imaginary filibuster, also called the
trivialized filibuster (by scholar Jean Edward Smith) and the phantom
filibuster (by scholar David RePass).

In 1975, party leaders in the U.S. Senate adopted a new procedure to
deal with filibusters: In order to keep the Senate floor clear for
other business, if senators merely threatened to filibuster, the
body would automatically impose a 60-vote limit on cutting off debate.
For the price of a threat, the votes needed to pass a bill could be
raised from 50 to 60.

It’s not clear why no one foresaw what would eventually happen, but
soon, the number of alleged “filibusters” was rising. Today, as abuse
of the 1975 system grows, the number of alleged filibusters each year
is routinely in double digits—and in the last Congress, the
number rose to three digits.

These were, remember, filibusters that didn’t actually happen; they
were filibuster threats.

Senators respond that the founders also allow the Senate to write
its own rules. But when we tried to find the rule covering imaginary
filibusters, we discovered it doesn’t exist. According to the Senate
Historical Office, the rules have never been changed to reflect the
1975 innovation: “The only rule that the Senate has regarding
filibusters and cloture is Rule 22, which sets a 3/5ths 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.”

In other words, the imaginary filibuster is not a Senate
requirement; it can be ended simply by Harry Reid announcing that he is
discontinuing the tactic. If he had done so at the start of this
Congress, the Democratic program would already be enacted.

Others say Reid, if he does not want to act that directly, has
another option: Require actual filibusters.

But as of now, the U.S. Senate remains a parliamentary Skull and
Bones, worshipping pointless ritual instead of serving the public’s
needs.

An expanded version of this piece originally appeared in the Reno News & Review.

This article appears in Dec 10-16, 2009.