Think it Through

With Arlen Specter a Democrat again (he started out as one in the ’60s) and Al Franken on the verge of breaking former Senator Coleman’s four corner stall in Minnesota, the Washington conventional wisdom says the Democrats will finally have the filibuster-proof majority of 60 votes that they have been missing.  Right? Not so fast.

There is no reason to believe the addition of the comedian and the chameleon to the Democratic caucus meetings will give the Senate Democrats a filibuster-proof voting block. All it does is move the swing votes in the Senate from Susan Collins and Olympia Snowe to the likes of Ben Nelson, Evan Bayh, Mary Landrieu, and Tom Carper.

It further marginalizes the Republicans – no more need to hang on every word and nuanced sentence of Collins and Snowe – but it does not assure the President a cooperative Senate. Without Specter or Franken the Democrats already had 58 members in the Senate. The lack of a working majority is not about numbers but leadership.  One orthopedic surgeon would do more than two new Democrats. The leadership needs a stronger backbone. Democrats have been unwilling to let the Republicans filibuster, and have two parties debate whether the American people want to follow the new set of policies presented by the Obama Administration or not.

Just last week we had an example that gave credence to my belief that two more Democrats will not be much help to the President. The Senate voted on April 29th to kill the president’s bankruptcy reform measure, which would have given bankruptcy judges in mortgage foreclosure cases to authority to weigh the facts and allow people to stay in their homes if the circumstances warranted. It was a simple case of consumers (and the White House ) versus the banks, which wanted no flexibility in foreclosures. Twelve  Democrats, including Senators Max Baucus of Montana, Mary Landrieu of Louisiana, Blanche Lincoln and Mark Pryor of Arkansas, Ben Nelson of Nebraska, Tom Carper of Delaware, and newly Democratic Arlen Specter went along with all the Republicans to vote with the banks to kill the bill.

Some people are screaming about the possibility of the federal government owning the banks, while they should be concerned that the banks own the United States Senate.

If we cannot rely on two more Democrats in the Senate to make real change happen, we go back to leadership, which raises some questions:

• First, will Majority Leader Harry Reid do what Tom Daschle should have done – that is step down from his leadership position to return to Nevada to campaign more often to protect his Senate seat that is up in 2010?

• Second, if Reid does step down , will his lieutenant Dick Durbin of Illinois break free from his role of the last six years – that of the loyal deputy who traced the missteps of his leader, such as watching helplessly as Senate Democrats enabled President Bush to break the Constitution by legalizing warrantless wiretapping, passing the Military Commissions Act,and enacting the Patriot Act, as well as making a mess of the Roland Burris appointment ?

• Finally, could Senator Durbin as a majority leader revert back to being the intelligent fighter for progressive causes that he was before he became a member of the Reid leadership team whose game plan has been to avoid controversy at all cost?

The answers to these questions are worth more than two more Democrats in the Senate.

Why is it that Senators, lobbyists, and the news media who cover Congress take as an article of faith that Democrats need 60 votes to pass their legislation in the Senate and the Republicans only need a simple majority?

The press has been reporting the need for 60-vote majorities as if it has always been a given – because 60 votes are needed to close down debate if the minority objecting decides to filibuster. Under Majority Leader Harry Reid, the idea of upsetting the Senate by daring the Republicans to actually carry through on their threats to filibuster is out of the question. When I asked a 30-year veteran Senate staff person this week how this phenomenon has come about, he said, “comity in the Senate is valued more than taking a stand for something.”

The Democratic leadership anticipates the Republicans will filibuster everything, so we read in the press that “under an agreement in the Senate, the bill needs 60 votes to pass.” But when the Republicans ran the Senate (many days it seems they still do), they passed something as important as Samuel Alito’s Supreme Court nomination with just 58 votes. No Democrat filibustered the nomination, and Alito took his long record of siding with large institutions against individual rights with him to the Supreme Court bench for the next 30 years.

Convinced by their pollsters and consultants that Americans do not want controversy, Democratic Senators cowered whenever then-Senate Majority leader Bill Frist called them obstructionists. This misreads the American people. We have found in our research that voters can discern between taking a stand on a controversial issue and bickering like school children.

For example, Americans view the filibuster as an appropriate tool for senators to use to make a point. In focus groups we conducted a few years ago we heard strong support for filibusters as a “check on the majority view,” part of our system of “checks and balances,” and a way to hear a diversity of views. If you lose public support after staging a filibuster, it be because voters disagree with you, not because you tied up the Senate business.

This Senate under the leadership of Harry Reid has seen no real filibusters, but has been limited by more 60-vote agreements than any in the history of the Senate. Some commentators have looked at this sorry situation and concluded the remedy is to eliminate the filibuster altogether, so there would be no need for cloture votes. I disagree. I think the voters in our focus groups had it right – the filibuster is a check on some extreme action that may be proposed by the majority party. It is not intended to be invoked on every vote – and if Reid challenged the Republicans to go ahead and filibuster, it would not be used that way.

The Democratic leadership in the Senate should force the Republicans to stand and defend their opposition to Democratic initiatives – dare the Republicans to filibuster. On issue after issue – on aid to cities and states, on taxes, on health care, on education and transportation funding – if the Republicans want to dramatically demonstrate their differences with Democrats by way of the filibuster, the Democrats should let them. This would require the Democrats having the ability to defend their own positions. Right now, neither side needs to engage too much – they simply “have an agreement that it will require 60 votes to stop debate and pass the legislation.”

Amplifying attention to issue differences between Democrats and Republicans would mean that the winners and losers would be more clearly defined. When Senator Strom Thurmond staged a filibuster to block civil rights legislation in the 1957 he heightened the attention of the nation on the issue of racial equality. Ultimately, his position failed.

As soon as the Democrats learn not to fear the filibuster, there will be fewer threats to the filibuster and the Senate will get back to majority rule.

Update: edited for clarity