Thursday, November 18, 2004

The Filibuster and the "Nucular" option

How should the GOP handle the filibuster?

This is how the nuclear option would work:

"At some point early next year, as Senate Democrats are blocking action on a Bush judicial nominee and the Republicans have another cloture vote that falls short of the 60 needed to end debate, Frist will raise a constitutional point of order, saying that a supermajority requirement for confirmation of a judicial nominee is unconstitutional. The vice president, sitting in the chair, will agree.

The issue will be brought to a vote, in which a simple majority can affirm the ruling of the chair. But--here's the rub--a constitutional point of order in the Senate is itself debatable, and can itself be filibustered. That issue will undoubtedly be raised by Sen. Harry Reid of Nevada, the Minority Leader, and any honest Parliamentarian will agree.

The vice president will overrule the Parliamentarian and recognize a motion to table, which is not debatable. Over the howls of outrage of Democrats--led no doubt by West Virginia Sen. Robert Byrd--the Republicans will vote, affirm the ruling of the chair, and pass the judicial nomination by a simple majority.

But Ornstein thinks the GOP should make the Dems speak for hours on end, all night long, until the public forces them to rethink their strategy:

Still, Frist should think twice, three times and even four, before he acts. Rule XXII, the cloture rule, is not the only tool in the kit for senators to block action. Consider Rule XIX, which says in part, "No senator shall interrupt another senator in debate without his consent." Consider that basically nothing happens in the Senate without unanimous consent--and that in the past, single senators such as James Allen (Ala.), Jesse Helms (N.C.) and Howard Metzenbaum (Ohio) have been able to tie the Senate in knots repeatedly on their own. Now imagine if the Republicans' action enrages 40 or more Allens and Metzenbaums.

What is most ridiculous here is that Frist has his finger on the nuclear trigger--and is ready to risk Mutually Assured Destruction--without even beginning to use the traditional tools available to him to break these filibusters.

Back in the 1950s, when filibusters against civil rights bills were almost routine, the Senate would force the filibusterers to take to the floor and go around the clock, bringing the Senate to a halt and letting the public see what was going on. The way to overcome intense minorities is to do just that. If anything, the live television feeds on C-SPAN would make the images even more resounding today. If the filibusterers' actions are outrageous and unsupportable, let the public react. Their resolve will eventually be broken.