Keep filibuster, but require a real one

The current filibuster rule is far too easy to utilize and too powerful for the minority to hold — Republican or Democrat.

The filibuster lives, for now, but we want to go retro and see an older version return.

In its current form the filibuster rule in the 100-member U.S. Senate allows the minority party to block progress on most legislation unless the majority party can cobble together 60 votes for “cloture,” bringing the filibuster to an end and proceeding to a vote on the bill.

Democrats now control the Senate by the slimmest margin. It is tied 50-50. Democrats have the majority as a result of the tie-breaking authority of Vice President Kamala Harris in her role as Senate president.

Getting 60 votes on anything will be tough.

Before the Senate can work at all, however, there needs to be an understanding of how things will operate in a split Senate. Without a power-sharing understanding, Republicans can cause all sorts of procedural havoc. The last time a split happened, in 2001, there was a deal to allow the party holding the vice presidency — then the Republicans — to have control of the floor agenda, with committees split evenly.

But this time Senate Minority Leader Mitch McConnell of Kentucky, before signing off on such a deal, wanted assurance the filibuster would be preserved. And, in a way, he got it — but not from the guy he was negotiating with, Senate Majority Leader Chuck Schumer of New York.

Instead, Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — knowing that blowing up the filibuster and giving that slim Democratic majority the ability to push through legislation without compromise would not play well in their conservative states — announced that they did not support getting rid of it.

That means Schumer does not have the votes to end the filibuster rule, which, oddly enough, could be done away with by a simple majority. And that means McConnell is again talking with his Democratic counterpart to set up power-sharing terms.

It is easy to understand why McConnell wants to hang onto the filibuster. From 2011 to 2015, he left President Barack Obama and the Democrats frustrated when, as minority leader, he used it to block bill after bill, along with many court nominations. So frustrated was then Majority Leader Harry Reid that he convinced his fellow Democrats to end the rule for federal judicial appointments, requiring a simple majority.

But watch out what you wish for. Because Republicans, once back in the majority, cited Reid’s precedent in also ending the filibuster’s applicability to Supreme Court nominees — appointing three conservative justices to the high court with simple majority votes.

So, should the filibuster live or die? It should live, but not in its current configuration. It used to be that senators had to truly filibuster — keep talking — unless the opposition could find 60 votes to shut them up. (It was once 67 votes, but one editorial can only hold so much history).

Under the true filibuster rule, a minority party would be reluctant to take such a stand unless they found the legislation being proposed was particularly untenable. These real filibusters would get the public’s attention, either critical or supportive.

Back then, a filibuster would stop all other matters in the Senate. It was a big deal.

But in the 1970s, the Senate changed the rule to let the minority set aside a bill as being filibustered — virtually — with no one really having to blather on. Other business could proceed but not the filibustered bill, which stayed frozen unless there were 60 votes to thaw it.

It made the filibuster far too easy to utilize and too powerful for the minority to hold — Republican or Democrat.

If McConnell goes back to his old games, if Republicans seek to stop any legislative successes by the Democrats and President Joe Biden, Democrats should call their bluff — not by ending the filibuster, but by returning it to its rightful place. Let Republicans talk endlessly about why requiring universal background checks for gun purchases is a bad idea. Centrist senators such as Manchin and Sinema could say they did not abandon this tool of moderation; they just made an adjustment for the better.

You want to filibuster? Then really filibuster. But you better be ready to talk a good game.