Son of Nuclear Option?

How is it that, after winning more votes than any presidential candidate before him and having the largest Democratic congressional majorities in a generation (which are even larger when you consider that they do not include the “solid South” conservative Democrats of old), Barack Obama and his administration still lack sufficient votes just to bring urgently necessary—not to mention popular—legislation to a vote?

The biggest challenge to effective policy as we attempt to climb our way out of this recession, administer universal health care, reform public education, and push through a climate-change bill is the de facto supermajority requirement for any bill in the Senate.

So the question poses itself: Do the Democrats take a page from the Republican playbook and threaten to “go nuclear” (as the Republicans threatened in 2005 out of frustration at Democratic cloture holds on conservative judicial nominees)?

Filibusters, in moderation, are a good way for the minority to prevent or, at the very least, delay the sometimes-overreaching ambitions of the majority. That can be a good thing. Indeed, it is particularly useful in times of crisis and populist hysteria to have a braking mechanism that causes Congress to at least stop and think before it acts.

Still, after 233 years of constitutional development, a supermajority is only required in five cases: to override a presidential veto, to amend the constitution, to pass treaties with foreign nations, to convict impeached public officials, and to expel members of the House or Senate. Nowhere does the Constitution say you need 60 votes just to debate contentious legislation.

Furthermore, the cloture/filibuster rule is not something enshrined by centuries of observance. The rule, as practiced currently, is a quite recent invention. Prior to the late ’60s, it was primarily used by Southern senators seeking to block civil-rights legislation. Filibusters were not a factor in enacting the legislative agendas of presidents from Roosevelt through Bush Sr. The filibuster has only entered into wide usage in the last 15 years, beginning in Bill Clinton’s first term, when Republicans filibustered 32 times during the 103rd Congress. That number has grown steadily since, thanks to both Republicans and Democrats. The latest Congress filibustered 112 times, 51 of which were successful. The institutionalization of the filibuster is perhaps the premier bipartisan accomplishment of the last two decades, even as it is obviously a product of the hyper-partisanship of this epoch.

The result is that, today, all it takes is 41 votes to bring legislation you don’t like to a halt, perhaps permanently. This is a maneuver particularly suited to the Republicans’ current strategic weakness and characteristic tactics: Oppose everything, constantly whip up the base, feed a steady, daily diet of red-meat attacks to Fox News, hope that something develops traction and slowly begins to erode Obama’s or the Democrats’ credibility, and, above all, show that Obama and the Democrats are “ineffective.”

Democrats just don’t have the cojones for this level of relentless obstructionism. During the Bush years, Democrats mounted many filibusters, but they were almost entirely with regard to highly partisan judicial appointments. For his major initiatives—No Child Left Behind, prescription drugs, tax cuts, the Iraq and Afghan wars, immigration—Bush received significant Democratic support. Democrats struck a deal about judicial appointments through the “gang of 14,” which smoothed the way for the confirmation of a slew of Bush appointments. There were no serious challenges to the appointments of Supreme Court justices Samuel A. Alito and John G. Roberts ’76, in spite of their manifestly conservative philosophies.

Yet, when it came to the stimulus package, an urgently necessary and popular measure, it took significant concessions to get three Republicans (all from states where Obama is wildly popular) on board to clear the filibuster, and, aside from them, no Republican even came to the table. This may only be the beginning of a long series of filibusters to Obama initiatives and judicial appointments that continue through the off-year 2010 elections, when the party out of power would ordinarily be expected to win back some seats. Even if Obama’s personal popularity may be hard to overcome, Republicans are hoping for a repeat of the Clinton presidency: a popular president at the mercy of an agenda-setting Congress where the Republicans either dominate or at least hold far greater sway than they do today.

Changing the rules is a risky proposition. Democrats hold 57, soon to be 58, seats in the Senate, so changing filibuster procedures may turn out to be unnecessary until at least 2010, when the deck will be reshuffled again. Yet, if current trends continue, a point may arrive when some type of adjustment in the rules should at least be threatened, perhaps not by the administration or party leadership, but at least by individual Democratic senators.


Clay A. Dumas ’10, a former Crimson associate editorial editor, is a social studies concentrator in Lowell House. His column appears on alternate Thursdays.