Sixty is the new 50 when it comes to American politics. No longer is it sufficient to have a legislative majority in the Senate — because of near-constant filibusters, a supermajority of 60 votes is now required to achieve results.
[IMGCAP(1)]After Republican Scott Brown's victory in the Massachusetts special election to replace the late Sen. Edward Kennedy (D), headlines seemingly ripped from the Onion or "The Daily Show" touted a 41-59 Republican "majority" over Democrats. It is now widely assumed that Democrats have lost their capacity to govern — even though they hold an 18-seat advantage over Republicans in the Senate and a 78-seat majority in the House and a Democrat occupies 1600 Pennsylvania Ave.
Although for many in Washington, D.C., this now seems like nothing more than business as usual, it represents a fundamental shift in the character of the Senate. In the last year, the Senate cast more votes to invoke cloture or break filibusters than at any other time in history.
The problem is this: The indiscriminate use of the filibuster is unsustainable. If it is only possible to govern when one party has 60 seats, then the Senate will not be able to govern very often; until last year, neither party had reached that level since 1978. On the other hand, eliminating the filibuster could lead to abrupt lurches in policy that would prove extremely disruptive. The challenge is finding a way to return the tool to its traditional purpose of allowing the minority party a voice on the very largest questions without permitting it to systematically impede majority rule. That was the insight that allowed resolution of the last crisis over the filibuster, the 2005 showdown over judicial appointments. Thankfully, the Gang of 14 ultimately resolved this standoff, guided by Sen. John McCain (R-Ariz.), for whom I worked at the time.
Lately, however, Congress seems to be forgetting the lessons learned from the Gang of 14 — that this is a tool to be used in balance, not to block nearly every item on the agenda for the sake of political gain.
In 2005, as McCain's communications director, I had the opportunity to observe the behind-the-scenes negotiations of the Gang of 14. McCain led a bipartisan group of Senators (seven Republicans and seven Democrats) seeking to dissuade Republicans from using the "nuclear option" to eliminate the filibuster for judicial nominations. Republicans, tired of Democratic filibusters blocking President George W. Bush's judicial appointments, considered changing the rules of the Senate to allow for confirmation votes with a simple majority.
The guiding philosophy of the Gang of 14 held that rather than deploying the "nuclear" or "constitutional option," a political compromise could be reached to deliver the Senate from partisan warfare. And it was. The group signed an agreement stating that its seven Democrats would break with their party and would not vote to filibuster the pending judicial confirmations (except in "extraordinary circumstances") and that its seven Republicans would break with their party and vote against enacting the nuclear option.
Longtime Sens. John Warner (R-Va.) and Robert Byrd (D-W.Va.), both members of the Gang of 14, worried at the time that the Senate was headed for an institutional crisis that could have altered its very role in American government. McCain warned his fellow Republicans that they would one day find themselves in the minority, at which time they'd appreciate the preservation of the filibuster. After all, it grants the minority party tremendous power to resist what the Founding Fathers called the "tyranny of the majority."
In the end, the foresight and bipartisan strength of this group successfully prevented what could have been an institutional crisis.
The key lesson of the Gang of 14's agreement demonstrated that while it would be a jarring change to eliminate the filibuster, it was also true that if the filibuster was used indiscriminately, it would make it more likely that it could never be used at all.
Clearly, the filibuster has its place in American government. But is it possible the filibuster has become too easy, a threat too often invoked? This threat of the filibuster has become so prevalent that Congressional leaders don't even anticipate being able to pass major legislation without clearing the 60-vote threshold. As James Fallows of the Atlantic recently pointed out, the requirement of 60 votes — on legislative questions large and small — has become the norm. In fact, he said, the practice is now so common that news outlets incorrectly refer to the need for 60 votes to pass legislation, when a simple majority — 51 votes — is actually what is required. The filibuster-proof 60-vote majority has become collective shorthand for the hurdle that needs to be cleared in order to get anything done in Congress.
Maybe it's time to go back to requiring Members to actually speak on the Senate floor for hours (and sometimes days) in order to execute this legislative tactic. Hollywood loved Jimmy Stewarts lonely stand in "Mr. Smith Goes to Washington," and there were real-life dramatic filibusters in the 1950s and 60s intended to block landmark civil rights laws.
Requiring Senators to actually execute the filibuster might return the technique to its intended use as a minority tool invoked infrequently on matters of great substance, and not simply employed as a matter of course in the legislative debate.
The frequency with which the filibuster is used today is grinding the country's legislative wheels to a halt. In the future, some restraint will be necessary — or maybe Senators should have to grab the nearest telephone book and start reading.
Eileen McMenamin is the vice president of Communications at the Bipartisan Policy Center. She previously served as the communications director for Sen. John McCain (R-Ariz.).