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GOP Sen. Everett McKinley Dirksen of Illinois was asked by a reporter in 1964, when he was minority leader, what he thought of a proposed change in filibuster rules. “Well,” he replied in his distinctive basso profundo, “Ha, ha, ha; and, I might add, ho, ho, ho.”
The Senate and the American people were reminded two weeks ago of what a real filibuster is when Sen. Rand Paul, R-Ky., held forth for nearly 13 hours on the nomination of John O. Brennan to be CIA director.
Paul was using the debate to get an answer from the administration as to whether the president has authority to use aerial drones to kill noncombatant American citizens on U.S. soil. His efforts paid off when Attorney General Eric H. Holder Jr. sent him a letter later that day stating the president did not.
While some criticized Paul for raising a fantastical hypothetical, others credited him with sparking a larger debate on the legal and ethical dimensions of targeted drone killings anywhere.
There are those who make a strong case that filibusters are anti-majoritarian and undemocratic. Common Cause and four House Democrats asked the courts last May to declare filibusters unconstitutional. Their suit was dismissed in December as a political question.
Within the Senate, there is no zeal for outright abolition. However, Democratic Sens. Tom Harkin of Iowa, Tom Udall of New Mexico and Jeff Merkley of Oregon renewed their rules overhaul efforts this year to make filibusters less frequent and easier to end.
Among other things, their proposals would eliminate filibusters on motions to proceed to consider matters; require 41 votes to sustain a filibuster rather than 60 votes to stop one; and force those who threaten filibusters to engage in good old-fashioned, “Mr. Smith Goes to Washington”-style talk-a-thons.
Moreover, they were prepared to invoke the “nuclear” or “constitutional” option of eliciting a ruling from the presiding officer (the vice president) that a simple majority vote could end debate on the rules change instead of the two-thirds vote required by Senate rules.
Senate Majority Leader Harry Reid, D-Nev., hinted last year he might pull that majoritarian trigger at the beginning of this Congress. However, as happened in 2011, he fashioned a bipartisan compromise with Minority Leader Mitch McConnell, R-Ky. It would make it easier to consider legislation and nominations and go to conference with the House, with fewer and shorter filibusters, in return for minority amendment guarantees.
Hopefully the compromise will de-escalate the filibuster wars of threats, counterthreats and retaliation that have left a graveyard of cloture motions and votes, filled amendment trees and dead bills — all with few actual filibusters.
Dirksen’s quip at the top of this column was made during debate on the 1964 Civil Rights Act. Although a staunch defender of filibusters, Dirksen eventually helped round up the two-thirds vote then needed to end what is still the longest filibuster in history — 534 hours, one minute and 51 seconds.