Are Filibusters an Endangered Species?

The United States Senate is a crusty old institution, replete with an anachronistic smorgasbord of traditions, customs, and rules of decorum. I recall hearing that freshmen members are formally indoctrinated to those rules at or around the time of their swearing in. Though some decline in adherence to those rules has been noted, by and large it is a less rancorous body than the House. Through history, invariably Senators have found creative ways to circumvent the rules to make their point, while instances of outright violation of the rules have resulted in fistfights on the senate floor.

The filibuster, though not constitutionally established, is a vaunted tradition dating back at least to Jefferson's day, which actually has its roots in expediting the proceedings. Ironically it has come to be known as a time consuming obstructionist technique, and it is easy to understand why some might regard it as antiquated. Still it remains one of the primary tools of a minority party to rein in potential excesses of the majority party. This article speculates on the possibility of the end of the filibuster in the coming session:

Now, with 55 Republicans in the Senate, Frist is ready to act to change the rules. Here is the likely option. At some point early next year, as Senate Democrats are blocking action on a Bush judicial nominee and the Republicans have another cloture vote that falls short of the 60 needed to end debate, Frist will raise a constitutional point of order, saying that a supermajority requirement for confirmation of a judicial nominee is unconstitutional. The vice president, sitting in the chair, will agree.

The issue will be brought to a vote, in which a simple majority can affirm the ruling of the chair. But--here's the rub--a constitutional point of order in the Senate is itself debatable, and can itself be filibustered. That issue will undoubtedly be raised by Sen. Harry Reid of Nevada, the Minority Leader, and any honest Parliamentarian will agree.

The vice president will overrule the Parliamentarian and recognize a motion to table, which is not debatable. Over the howls of outrage of Democrats--led no doubt by West Virginia Sen. Robert Byrd--the Republicans will vote, affirm the ruling of the chair, and pass the judicial nomination by a simple majority.

This set of actions is something Frist seriously contemplated last year. He didn't act for several reasons. One is the damage that would come to Senate comity. Another is that he likely didn't have the votes.

Now, he may well have the votes, but it is not a slam dunk. Republican Sens. John McCain (Ariz.), Chuck Hagel (Neb.), Lincoln Chafee (R.I.), Susan Collins (Maine), Olympia Snowe (Maine), Arlen Specter (Pa.) and Dick Lugar (Ind.), among others, have to be agonizing over the whirlwind that they and everybody else may reap from this action. Other veteran Republican senators, with a longer view of history, also have to know that there will come a time when activist liberal Democrats are back in the saddle, and that this precedent, which can be extended effortlessly to various and sundry policy matters, will come back to haunt conservatives.

I've already expressed concern about potential overuse of filibusters by Democrats which could give them the obstructionist label. Removing the possibility of a filibuster, however, carries grave concerns for overreaching on the part of the majority party. The deterrent effect of knowing the possibility of a filibuster exists keeps excesses in check, and helps Democrats in committee keep the most objectionable clauses out of bills.