Scott Brown (R-MA)  hasn’t been seated in Teddy’s 50-year-old chair, yet–but already he has an action figure. And some reports–notably, this one in the Christian Science Monitor– say his Republican victory in the Massachusetts race for Kennedy’s vacancy has “sent tremors” not only within the Team Obama reform effort but also “throughout the United States.” Beyond the five states the Monitor cites as candidates to follow the Massachusetts’ example, the spillover has also reached the Illinois primary–yes, a primary–in which Reuters points out “Five things to watch in Illinois” and at least one GOP-leaning blogger quotes the Reuters report then goes on to say: “The White House is paying close attention today. It’s a primary close to Obama’s heart, as it’s his former Senate seat that’s up for grabs.”

One thing for certain–any leader who can even partially help us to hack our way out of this mess deserves an action figure.

The serious, sobering certainty is that one election cost the Democrats their Senate “supermajority” of 60 votes, the implications of which are detailed in this CBSnews.com piece.

Here’s the highlights: “Basically, without 60 votes, under Senate rules, debate could go on forever and ever. This is called the filibuster. So basically, [because Brown won] . . . , the Republicans, with 41 votes, . . . have enough votes as the minority to prevent the Democrats, the majority with 59 votes, from ever bringing a final vote on health care reform or any other legislative priority to the floor. The minority [does] . . . basically control the Senate.”

Senate tactic not mentioned in Constitution

Ok, well, maybe that’s not quite true, but the point about the filibuster is accurate; and if all this self-focused in-fighting is not enough, turns out that cloture, the “procedure” that kills a filibuster, is not even a Constitutional device–in other words, even though its effects are very important to legislation that affects us all, it’s merely a procedural tactic–and limited to the Senate, at that. (For comparison, read about the Electoral College, which is in the Constitution.) This won’t be “the first time that the filibuster has been used to stop major pieces of legislation,” Fisk and Chemerinsky write, “and it’s definitely not a partisan idea–both parties, when in the minority, have used the filibuster to prevent the majority from passing everything they wanted to.

“According to law professors [Fisk and Chemerinsky] in their Stanford Law Review article from 1997, ‘The Filibuster,’ the technique was used not only to prevent civil rights legislation from passing for years in the last century, but more recently during the Clinton administration. Senate Republicans, then as now in the minority, used the filibuster to stop economic stimulus, campaign finance reform, lobbying reform and the [previous] attempt at health care reform. When the Democrats were the minority party in the Senate, they used the filibuster to stop much of the GOP’s Contract with America.

” ‘Filibusters are so ubiquitous in the contemporary Senate that it is now commonly said that sixty votes in the Senate, rather than a simple majority, are necessary to pass legislation and confirm nominations,’ wrote Fisk and Chemerinsky. “In fact, during the presidency of George W. Bush, Democrats, with Biden in their ranks, frequently filibustered some of the president’s judicial nominees for the federal courts.”

It gets worse.

Evolution of the ‘painless’ filibuster

When you think of a real-life filibuster, aren’t you getting an image at least somewhat informed by movie life? Namely, Jimmy Stewart’s “Mr. Smith” in Mr. Smith Goes to Washington. Anyone who’s ever seen the movie remembers the agonizing filibuster reel, watching the hero struggle to learn the tricks of the rulebook, while the other senators take turns dozing, coming and going in shifts.

Well, it turns out things have changed quite a bit since Capra made that 1939 movie.

The filibuster tactic nowadays is known as the “stealth filibuster.”

From the abstract of the Fisk and Chemerinsky paper: “Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a senator to hold the floor to filibuster; senators filibuster simply by indication to the Senate leadership that they intend to do so.”

In other words, a senator merely indicates that “I would filibuster, if I had to” and that takes the place of the real thing: no parched lips, no pleading bladder. *Poof* Instant roadblock, and the bill is tabled–Next!

From a May 5 piece at Huffington Post, “The Electoral College is provided for in the United States Constitution. The filibuster is not. In fact, the word doesn’t appear in any of our founding documents. Its derivation is from the Spanish filibustero, meaning ‘pirate’ or ‘freebooter.’ “

History of the tactic’s development traces to 1789, according to the Huffington piece, but for this discussion, the first important change came in 1917, when “the Senate developed a way of shutting down dilatory tactics of an obstreperous minority. It is called the cloture rule. During the closing days of the session that year, a group of isolationist senators who opposed the entry of the United States into World War I filibustered a bill which would have allowed President Wilson to arm U.S. merchant ships. The President denounced them as a ‘little group of willful men’ and called on the Senate to change its rules.”

Which it did, resulting in “a cloture rule which was embodied in Rule XXII of the Standing Rules of the Senate” . . . providing for “a 2/3 vote of all senators” that “could cut off debate.”

Whether Jimmy Stewart’s character had a problem taking a bathroom break is a question for fans of movie trivia, but the longest. actual-factual real-life filibuster on record–Strom Thurmond’s 24-hour, 18-minute ramble-thon against the Civil Rights Act of 1957–“would have gone on longer had Thurmond’s doctors not forced him to quit out of concern for kidney damage.”

More important was a deal brokered by LBJ (big surprise, right?) that resulted in a couple of new wrinkles, which in turn paved the way for a post-Watergate rule change that, among other things changed the majority requirement to a 3/5 vote and resulted in the the 60-vote supermajority requirement of today.

Inadvertent creation

Sadly, there’s more…which brings us back to Fisk and Chemerinsky, as described in the Huffington piece: “The story took a turn for the worse when, in the early 1970s, Senate majority leader Mike Mansfield — intending to dilute the power of the minority –inadvertently made filibustering easier.

“The extended speechifying made famous by Strom Thurmond and Huey Long before him has been replaced by what legal scholars Erwin Chemerinsky and Catherine Fisk have dubbed the ’stealth’ filibuster. Its genesis was the early 1970s, when it became apparent to then majority leader Mike Mansfield (D-MT) that delaying tactics such as objections to unanimous consent motions; forcing the previous day’s journal to be read aloud in its entirety; suggesting the absence of a quorum; and — of course — extended periods of time holding the floor were causing the Senate to fall behind in doing the people’s business.”

An idea emerged to let filibusters occupy morning sessions, but to reserve afternoons for “pressing business.”

Perversely, what actually developed from Mansfield’s dual-track system “has proved to be disastrous.”

——————-Next, in Part 2—————

What we have now is a system in which “the Senate has come to a point in time where it seldom takes up legislation unless the majority leadership has counted sixty votes. In other words, a credible threat that 41 senators won’t vote for cloture is enough to keep a bill off the floor on most occasions. Boston College historian Julian Zeliger puts it this way: ‘Mansfield’s measure, which was intended to promote efficiency, inadvertently encouraged filibusters by making them politically costless and painless.’ ”

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