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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It’s a familiar script:

1. The Senate fails to pass a bill because even despite near uniform support from Democrats, the proposal does not come close to the 60 votes necessary to block a filibuster.

2. The bill has no chance in the House because, if the bill might help those in need, the Republicans have no interest in it.

3. The original bill addressed the issue in a watered-down manner, and even if it passed, the problem would only be half-addressed.

Once again this was the case earlier in April 2012 with the so-called Buffett Rule, a proposal to reform the United States tax code. The rule was the brainchild of Warren Buffett, the world’s third wealthiest individual. It was quickly adopted by President Barack Obama and others, including former President William Clinton.

Buffett, an investor based in Omaha, was appalled when he learned several years ago that his secretary was paying a higher income tax rate than he was. While he did not reveal his secretary’s income, we know that Buffett’s net wealth is well over $40 billion and has been known to increase (or fall) as much as eight to ten billion dollars a year.

Senate Majority Leader Harry Reid put the Buffett rule to a vote. It “passed,” 51-45, with one Democrat, Senator David Prior of Arkansas who is up for re-election later this year, voting against it. One Republican, Senator Susan Collins of Maine, voted for the bill. But even with the dynamics of this 2% bi-partisanship, the vote came nine votes short of the necessary 60 votes to stave off a filibuster.

The Buffett Rule, as proposed by the Harry Reid and supported by President Obama, would have put a 30 percent minimum tax on millionaires. The idea behind the tax was fairness, not significantly reducing the federal deficit. The bill would have been estimated to raise $47 billion over the next ten years, which is approximately one-tenth of one percent of the anticipated  $45 trillion federal spending increase over the next decade.

CNN’s Fareed Zakaria, who is as brilliant an economist as he is an expert of foreign affairs thought that the Buffett bill would have had limited benefits. He said:

My problem with it is that what we really need is comprehensive tax reform. We have what I would describe as the world’s worst tax code. It is the longest, the most complicated, riddled with loopholes, exceptions and deductions – all of which are fundamentally institutionalized corruption. They are a way that Congress is able to reward powerful constituents by giving them what seem to be small giveaways in the tax code but which are, of course, government grants often amounting to hundreds and millions and billions of dollars in perpetuity (because unlike appropriations, these do not come up for review every year; once you put in a tax exemption or preferential tax treatment, it exists forever).

Zakaria goes on to say, “I would be much more comfortable with the Buffett Rule if it were part of a larger tax reform strategy.

One of the largest loopholes in the proposed bill is one that has widespread popular support. Unlike the regulations of today’s tax code, under the Buffett Rule, wealthy people would be able to deduct an unlimited amount of money for charitable purposes. There would be no limitations on tax deductions. This would mean that Mitt Romney could give an unlimited amount of money to the Mormon Church without any tax penalty. Similarly, a donor to health clinics for the poor distributed across the United States could donate billions without any tax restrictions.

The fact that the three wealthiest individuals in the world (Carlos Slim Helu of Mexico, Microsoft founder Bill Gates, and Buffett) are all progressives and supportive of the Democrats’ plans to reform the tax code, is of little or no consequence to Republicans. GOP members of Congress and other powerful individuals in the Republican Party have plenty of other sources of money including the infamous Koch Brothers. But perhaps more importantly, and a factor that may be to the credit of Republicans, many on the extreme right are willing to fall on the sword for principle. It may not matter that the principles are based on protecting the wealthy and undermining the needs of the poor. If there is an opportunity to be insensitive to those most in need, they are often willing to seize the moment and sacrifice efforts to even share in the wealth of the world’s wealthiest individuals (still one of the great mysteries of the world). Kudos to the Republicans who stand up for principle, but an ‘F’ to them when it comes to exercising a social conscience. The combination may work for many Republicans, but not for those most in need. This is not only odd; it’s most unfortunate.

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