By its very definition, the term “news” means something that is happening now. What qualifies as news in the mainstream media is largely events that are occurring in the here or now. In many ways it doesn’t matter whether it’s a crime, a fire, an accident, a scandal, or a “dog bites man” type of story; it just has to meet a very broad definition of “breaking.”

What gets lost in the mainstream media is those issues that extend over an extended period of time; the ones that involve perspective and concentration. No issue could represent the overlooked story to the mainstream media better than efforts of Democrats in the United States Senate to reform the rules regarding the filibuster.

Filibustering is a stalling tactic and thus it is a perfect way to push today’s news into the far reaches of “yesteryear.”  This means that it’s highly unlikely that the issue will find its way into day-to-day reporting by the mainstream.

The fact that the filibuster is not on our daily radar screens does not mean that it is a minor issue. The Republicans have used it like an anesthesia to deaden our concern about what is happening – or more accurately what is not happening – in the US Senate. Their use of the filibuster has left numerous federal agencies rudderless because no one has been confirmed to direct the agency. Some commissions like the National Labor Relations Board have been thoroughly hamstrung from operating because so many seats are vacant that a quorum cannot be achieved. Our judicial system has been crippled as dozens of nominees for federal judgeships have not been confirmed, thus further grinding the wheels of already-delayed justice.

In many ways the public receives news about the filibuster debate in the Senate in a way that is similar to the way in which the proverbial frog responds to being in a pot of water that is doing a slow boil. The public snoozes through a slow-moving issue that is of exceptional importance. Amnesia and more sets in while the Senate sleeps on an important issue until it is nearly forgotten. This impacts virtually every component of our lives.

The mainstream media does not bother to keep us informed about the fact that nothing is happening in the Senate to break the gridlock. They would rather alert us about the latest word on the “royal baby.” With local news, it may be something as earth-shattering as a family picnic.

MSNBC is capable of giving us valuable information from both the current time and the recent past. However, the cable station becomes increasingly snarky which devalues whatever else it might report.

We are largely left to ourselves to guard against slumbering while the pot is beginning to boil. The mainstream press keeps most people in a haze as vital news issues pass us by. We and the media had better wake up quickly before the nation crumbles because not enough people were awake to warn the others of the impending danger.

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As I write this, Senator Rand Paul [R-KY] is still standing on the floor of the Senate, filibustering against the appointment of John Brennan as head of the CIA. Surprisingly, I agree with Sen. Paul on the need for more transparency regarding American policy on the use of drones. I’m in good company there, as even a progressive like Sen. Ron Wyden [D-OR] is calling for more openness about how our country views the use of drones.

But when Sen. Paul insists on holding up Brennan’s appointment until Attorney General Eric Holder promises that drone attacks will never be used against a U.S. citizen on American soil, he’s gone too far.

That’s a promise no president can make.

Putting drones aside for the moment, I’d like Sen. Paul to answer this question: Has the U.S. government—more specifically, agents of the U.S. government, such as FBI agents or U.S. Marshalls—ever used any type of lethal weapon against a U.S. citizen on American soil? Have state and local government agents used lethal weapons? Of course they have. And tough-on-crime Republicans have applauded law enforcement in many of these instances. I’m not fan of guns, and I do not welcome the recent hyper-militarization of American police forces, but even I can imagine circumstances in which the only course of action is to use lethal force—against a U.S. citizen on American soil.

It’s no more realistic to exact a pledge of no-drones against Americans than it is to prohibit law enforcement from doing its job when necessary. Would a Senator in the 1930s have demanded that Eliot Ness and his newly formed FBI not use machine guns against the gangsters [they were American citizens] of the Prohibition era, just because machine guns [as automatic weapons were known back then] were the most advanced weapons of the time?

A few days ago, Sen. Lindsey Graham [R-SC] tried to convince us that it doesn’t make sense to ban assault weapons—citing the supposedly reassuring fact the he owns an AR47 himself. That’s going to make us feel better? Graham said that, if America experienced a major cyber attack in which we had food shortages and no electricity, it might be a good idea for citizens like him to have assault weapons. For what? To protect ourselves against marauding hordes of fellow, desperate U.S. citizens on American soil? He didn’t go so far as to mention a zombie apocalypse, but it’s pretty interesting that he wants to protect his right—and that of other survivalist citizens—to get violent against one another, while prohibiting the U.S. government from stopping anarchistic or terrorist activity with the most advanced technology available.

Where were these guys when Bush and Cheney used weapons of mass deception against American citizens on U.S. soil? If there was a filibuster demanding a pledge not to use torture during the Iraq invasion/occupation, I’m not aware of it.

Sen. Paul’s point seems to be that perfectly innocent citizens, like himself, could be sitting in a café having a latte when, poof, out of nowhere they are vaporized by a drone attack launched by our own government. Hasn’t it always been illegal in the U.S. for government to attack innocent citizens—no matter what the weapon of choice of the day? But, silly me, I forgot that Sen. Paul is a Tea Partier and a conspiracy theorist whose main theory is that the U.S. government is conspiring to take over the United States.

Anyway, between the time I started writing this post and now, Sen. Paul’s filibuster publicity stunt droned on [pun intended, of course], flew way off course into delusional territory, and finally came to an end when the Senator declared that he needed to go potty.  Also, Eric Holder issued an answer to Sen. Paul’s main question: The President is not legally authorized to use a drone attack against a non-combatant American on U.S. soil.  The Senate confirmed John Brennan as head of the CIA.  Rand Paul has been excoriated by more rational members of his own party [including John McCain!]. And the talking filibuster appears to be back in fashion.

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As a number of pundits, such as John Nichols of The Nation are saying, we need to reform the filibuster system in the U.S. Senate. The idea advocated by Nichols and many others is to adopt the strategy used by Jimmy Stewart (lead character in “Mr. Smith Goes to Washington”) and require senators to actually stand at their desks and speak. In recent years, all that senators have had to do is to state that they want to engage in a filibuster and a bill cannot be voted upon until there are 60 votes available to end the filibuster.

In the current make-up of Congress, Democrats (along with Independents) have only 53 votes. In the coming Congress they will have 55. Since Republicans are recalcitrant about remaining unified, regardless of the merits of almost any bill, virtually no filibusters are stopped. The Republicans have to do no more than say they are filibustering a bill and they get all the benefits of doing so. If the Democrats become the minority, it is reasonable to expect that they would do the same thing under the present rules.

Nichols says:

Historically, the filibuster existed as a protection against the silencing of the minority. Under the rules of the Senate, a member or group of members who did not have the votes to prevent approval of a piece of legislation could demand to be heard in opposition. Ideally, the traditional theory went, this avenue of dissent could prevent a rush to judgment.

But, in recent years, the filibuster has not been used to raise voices of dissent. Instead, it has been used to block votes on critical pieces of legislation, to make it harder for the president to advance even the most popular proposals and to undermine the basic premises of the principle of advice and consent.

Although the Democrats and Independents had 59 votes in the Senate from 2009-2010, they were generally unable to stop filibusters because (a) the obvious reason : 59 is one short of 60, and (b) some Democrats, such as Ben Nelson of Nebraska, often voted with the Republicans.

Senate, meet NFL

Adopting the “Jimmy Stewart Rule” seems to be an improved way to limit the damage that the filibuster does to the will of the majority. But borrowing a procedure from the National Football League might be far superior.

The NFL has a rule stating that the coach of each team is able to throw a red flag on the field twice a game. The red flag indicates that he wants to challenge the referee’s ruling on the field. The coaches have to be judicious about throwing the red flags, because if their appeal does not result in the decision being overturned, the coach’s team loses a time out, which can be crucial to managing the clock.

The key is that there is a limited to the number of challenges each team can have per game.

How it would work

Suppose that this was applied the number of  filibusters the minority party could use in a session of Congress.

When Lyndon Johnson was Senate Majority Leader in the 1950s, Republicans engaged in only one filibuster. That’s right, one. Over the past six years, in which Harry Reid (D-NV) has been majority leader, Republicans have engaged in 386 filibusters. These filibusters are the primary reason why Congress has been in a state of gridlock ever since Barack Obama became president.

Suppose that the minority party was limited to ten filibusters (and “a hold,” – a topic for a future post) per year. The minority party would have to be extremely judicious about how they used their filibusters. Currently, they can use a filibuster for a wide expanse of legislation, ranging from the confirmation of judges or cabinet to funding an overseas military engagement. Frequently, Republicans have used the filibuster to stop important social welfare programs, such as food stamps, or extending unemployment benefits. In fact, they have often used it to block any effort to reach a budget accord aimed at reducing the national deficit through increased taxes and cuts in government expenditures.

Indeed, the filibuster is important to protect the rights of the minority party. Many of the issues that face the Congress are designed to protect minorities, whether they are in the field of civil and human rights, workers’ rights, women’s rights, LGBT rights, or other social issues. The Senate is often referred to as the deliberative house of Congress. It needs to remain that way. However, being deliberate is not the same as causing gridlock. With Democrats currently in the majority in the Senate, now is the time to reform the filibuster system. Senate rules allow one day, the first day of the new session in January, for changes to the rules. Maybe members of the Senate should spend their holidays watching NFL games so that they see the wisdom of putting limitations on the number of challenges.

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Everybody [at least everybody who wants an effective democracy] talks about ending “filibuster abuse,” but who’s doing something about it? At least one US Senator is. On Thursday, Dec. 2, Sen. Jeff Merkley [D-OR] announced a set of proposals to reform the Senate’s rules on filibustering.

Calling abuse of the filibuster “the heart of the Senate’s dysfunction,” Merkley says that “the Senate’s original commitment to full and open debate has been transformed into an attack designed to paralyze and obstruct the Senate’s ability to function as a legislative body.” Before outlining his specific proposals for reform, Merkley offers a succinct and persuasive summary of how the filibuster has been abused in recent years:

The filibuster can be thought of as the power of a single senator to object to the regular order of Senate deliberations, thereby invoking a special order that requires a supermajority and a week delay for a vote. Historically, this power did not paralyze the Senate because it was invoked upon rare occasions. In recent times, however, minority senators have started objecting to the regular order on nearly a daily basis, paralyzing the Senate.

It is important to observe that a senator who objects to the regular order pays virtually no price in time or energy. At most, one senator must stay near the floor to object to any unanimous consent proposal designed to force a vote. As a “courtesy,” this task can be handled by a member of the objecting senator’s leadership. Contrary to the deeply rooted popular impression, a filibustering senator does not need to speak continuously on the floor to sustain his or her objection.

Indeed, following the initial objection, the responsibility shifts to the majority to assemble a super-majority. And if the majority wants to maintain continuous debate to dramatize an objecting senator’s obstruction, it is the majority that bears the burden of maintaining a quorum on the floor. Without such a quorum, a single senator can shut down debate by asking for a quorum call.

If you had to read that block quote several times to understand it, join the club. Senate rules are complicated and convoluted—a maze of ins and outs that only a serious student of parliamentary procedure could love. [If you’ve ever attended a college-level Model United Nations session, you’ve witnessed how, even when it’s only a simulation, some “players” use procedures as weapons to defeat opponents’ proposals.]

Merkley also outlines the perverse effects that filibuster abuse has had in 2010 on the Senate’s ability to function:

• Failure to adopt a budget and pass appropriation bills
• Reduction of floor time for “digestible” bills, resulting in bundling smaller issues into huge legislative packages that are difficult to understand and debate
• Failure to consider legislation passed by the US House of Representatives
• Damaging the executive branch by holding up, in 2010, more than 125 nominees
• Bottling up, in 2010, 48 judicial nominations, leaving crucial federal judgeships unfulfilled and crippling the federal judicial system
• Paralyzing the US Senate and adding to the frustration between political parties

“These are not the marks of ‘the world’s greatest deliberative body,’” says Merkley.

Merkley’s eight-point proposal does not suggest eliminating the filibuster. Rather, it attempts to address filibuster abuses while also protecting the legitimate right of the minority to express its viewpoint. His ideas are not the only ones out there—just the most recent. Earlier this year, Sen. Charles Schumer, chairman of the Senate Rules and Administration Committee, held hearings on the same subject. Over the summer, Senators Frank Lautenberg [D-NJ] and Michael Bennett [D-CO] offered their own versions.

Here’s a somewhat edited version of Merkley’s proposals. Warning: Once again, a lot of this stuff is “inside baseball,” so don’t be surprised if it seems obscure. For the sake of brevity, I’ve edited out some of the details about how it would work, what specific language Senators would use in motions, etc. You can read all the gory details here.

Personally, I find #5,  #6 and #8 the most intriguing, common-sense based and innovative, from a layperson’s point of view.

And remember, these proposals are offered by an insider for other insiders. For one Congressional observer’s analysis [spoiler alert: he likes most of what he sees and explains why], check out the post by David Waldman, of Daily Kos’ Congress Matters.

#1) Narrow the scope [of the use of the filibuster]: Eliminate the use of the filibuster on motions to proceed. Blocking deliberation has little place in a legislative body. If a Senator believes a bill is so deeply flawed that debate should be suspended, the senator still has the right to move to table the bill.

#2) Further narrow the scope: …it is worth debating banning filibusters on amendments since members would still have the right to filibuster the final vote. […Examine] the value of limiting filibusters on appointing conferees.

#3) Create an expedited path for nominations: ….The regular order for each nominee might still be subject to a filibuster, but only under the revised filibuster requirements discussed below.

#4) Require a filibuster petition: Require a substantial number of senators, perhaps 10, to file a filibuster petition to block a simple majority vote on an amendment or a bill. By creating a public record, senators have to take responsibility for obstructing the process. This also prevents a single senator from blocking the regular order.

#5) Require filibustering senators to hold the floor: The public believes that filibustering senators have to hold the floor. Indeed, the public perceives the filibuster as an act of principled public courage and sacrifice. Let’s make it so. Require a specific number of Senators — I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter — to be on the floor to sustain the filibuster. This accomplishes two important objectives. It makes a filibuster visible to all Americans. And it places the responsibility for maintaining the filibuster squarely upon those objecting to the regular order

#6) Require continuous debate: . ..Under this requirement, if a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded, and a simple majority vote is held according to further details established in the rules. This further expands the visibility of the filibuster. Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process.

#7) Establish the right of the minority to offer amendments: The Senate wastes enormous amounts of time trying to work out a structure for the presentation and debate of amendments on any given bill. The Senate needs a regular order for the presentation of amendments so that, in the absence of an agreement between the Majority and Minority leaders, debate will proceed.

#8) Decrease the segregation of members: Members of the Senate are segregated by party. They sit on different sides of the aisle in the Senate chamber. They sit on opposite sides of the room in committees. They caucus separately. Even the pages on the floor are designated as “Democratic” pages or “Republican” pages. These practices may not have been significant in the past when senators lived in Washington and socialized on evenings and weekends. But now senators work evenings and then fly home, greatly diminishing the time for informal interactions with each other.

Will anything change in the 112th Congress, which convenes in January 2011? That, too, is debatable. And here’s the kicker: it’s not even clear whether rules changes are, themselves, subject to a filibuster.

Image credit: Mario Piperni.com

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President Obama has sounded the train whistle signaling that health care reform is his fast-moving vehicle.  A new, revised bill will be attached to the annual budget reconciliation measure, which requires a simple majority vote for passage.  After his healthcare summit, the President urged Congress to “finish its work” and vote on a new revision of comprehensive health care legislation.  In an effort to include Republican ideas, the bill will include state grants for medical-malpractice reform, and measures to curb waste in Medicare.  Senate Democrats will send the revised measure to the Congressional Budget Office for a cost estimate that will be presented to the public.

Yet, politicos and politicians are saying that health care reform via “reconciliation” is not in the best interest of voters. They are focused on the process, rather than on the policy.

Here’s a brief history of reconciliation: Since 1982, major changes to the health care laws have been passed through the budget reconciliation process.  It’s a good provision that was designed to keep spending and taxes within the parameters of the budget blueprint, a task made easier by an expedited process that prohibits filibusters and limits debates to 20 hours. This change also had the effect of lowering the threshold for action from the 60 votes necessary to close debate to a simple majority.

Key measures that have changed health care laws through reconciliation bills are: the 1985 Consolidated Budget Reconciliation Act (COBRA), which allowed laid-off workers to continue their employer-sponsored coverage; and the Budget Act of 1997, which created the Children’s Health Insurance Reform.  In fact, 17 of 22 bills passed under the reconciliation process have been pushed by a Republican-controlled Congress or under a Republican President.  In 1996, reconciliation was used to enact other sweeping welfare reform via the Republicans’ Contract with America.  Again, in 2001 and 2003, Republicans used reconciliation to pass President Bush’s tax cuts.  So, there is a precedent.  In fact, what is in play in the basic notion that majority rules.

Soon, the Senate leadership will pass another bill by inserting it into the text of the budget reconciliation bill. This tactic is a legitimate alternative to the standard rules for lengthy debate time, disabling filibusters and the 60-vote threshold for action.  .

There also is a pesky notion that Congress has been rushing and that reform is being jammed down America’s (and industry’s) throats.  Here is the true story: In 2008 and 2009, the Senate Health, Education, Labor, and Pension Committee held 14 bipartisan  roundtables, 13 hearings and 20 walkthroughs.  In June and July of 2009, the committee spent 13 days and more than 56 hours marking up health care legislation.  Further, the Senate Finance Committee held over 50 meetings and 17 roundtables, summits, and hearings.  Even with that said, some folks cry about unfairness to the minority in Congress.  No need to feel bitter or rushed anymore: this process has been a thoughtful one.  And with regard to the fear of a “federal takeover of health care,” the proposal is actually not a government-run program, but a state-run health insurance exchange.  It will create choice and competition in health care.

The truths are out there.  The government is not a monster designed to squash our liberties.  Perhaps with an understanding of the legislative process, voters might become more engaged, willing to promote positive policy ideas and less fearful of or angry about change.

As for health care reform, the majority in Congress supports it, they have worked on developing ideas with the public for a year or more, the President has put his name on the overhaul, and with a simple majority vote in both bodies, a bill will be enacted and signed into law.  While it’s not the most streamlined bill, and while it does not provide a public option, these are the rules, just as we had them under the Republican majority.  So, let’s play by them:  know what the substantive issues are at play by reading, listening and talking to the sources.

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