Legal Commentary

My procedural take-away from the stimulus story is that the Senate needs to bring back the filibuster--the Jimmy Stewart/Strom Thurmond-25-hour-talk-a-thons. The point was driven home by this morning's story on NPR about last night's compromise, which stated that the support of the three Republican Senators was necessary because "60 votes are needed for passage in the Senate." This is a classic example of a statement that is true but not accurate.

Sixty votes are not necessary for passage in the Senate. Fifty votes are necessary for passage* in the Senate; 60 votes are necessary to allow a vote and a determination on the merits of the legislation. And while the former is necessary for the latter, they are not the same and should not be treated the same or reported as the same. It would be a bit like saying "In order to prevail on your Title VII claim, you must first exhaust your EEOC remedies" or "In order to prevail on your fraud claim, you must first state your claim with particularity." Yes, you need to do those things to get your claim into court and have it move forward to a consideration and determination on the merits. Of course, that is necessary to ultimately prevail on the merits. But that is because you always have to comply with procedural rules. It does not make procedural compliance part of prevailing on the merits (the substance, if you will).

There is, of course, nothing wrong with procedural arguments or imposing procedural hurdles to merits determinations (assuming those hurdles are not so rigorous as to prevent meaningful merits resolution). But the conflation of procedure and substance is significant here because it allows the filibustering minority to block consideration on the merits without having to speak in procedural terms. Republicans are able to argue why they disagree with the bill and why the bill should not be passed. The real hold-up, which they are not required to talk about, is that they are preventing a vote on the merits. Compare civil litigation: If you want to argue that the case should be dismissed for lack of personal jurisdiction, then you better talk about International Shoe, not about why what your client did not constituted fraud (in fact, arguing the merits may waive the jurisdictional argument).

Now, formally, filibusters and cloture are about cutting off debate; 60 votes are necessary to halt debate on the bill. So substantive arguments ("This is a bad bill because . . .") are perfectly proper. But changes to Senate rules no longer require continuous debate. Rather, on threat of filibuster, the bill generally is pulled off the agenda and the Senate goes on with new business or, as here, the bill is revised (arguably for the worse) to get over the 60-vote line.

Lost in all of this is democratic accountability. Filibusters have become costless--the minority party (or, as here, a few swingers from that party) can hold up legislation through the mere threat of a filibuster--knowing that it lacks 60 votes to bring the bill to a vote (i.e., to cut-off debate), the majority party is helpless. And the minority can do this without paying any political price. It can block passage through a procedural mechanism without having to speak in procedural terms or to openly acknowledge to the public the use of a procedural mechanism--and to pay a political price if the public becomes angry that procedure is being used to block important and popular legislation. As a result, the number of filibusters for the past ten Congresses (going back to the late 1990s) has increased ten-fold. What was once rare has become the norm. So much so that the public now is under the impression, enhanced by sloppy political reporting, that the Senate has a genuine super-majority requirement.

So I propose either or both of two solutions:

1) Bring back the talkathons. If a filibuster really is about unlimited debate, then the minority party must continue debate, to the exclusion of all other Senate business, as long as the chair keeps the Senate in session. Maybe the public will view the filibusterers as heroic individuals standing up against a corrupt majority--as Mr. Smith; maybe (more likely) the public will be angered by what it seems as gamesmanship based on on wrong ideal--as Thurmond as unreconstructed segregationist. But at least the public gets an honest view of what really is going on.

2) If the announcement of a filibuster is enough to prevent a vote even without non-stop debate, any discussions must be framed only in procedural terms. No speeches or public statements about why the bill is a bad idea; only speeches and statements about why it is such a bad idea that it is not deserving of a vote on its substance. If this is a procedural move, make it clear that it is a procedural move.

I suppose a third solution would be to be honest--amend the rules to require a true 60-vote supermajority for passage of legislation.

I am not necessarily anti-filibuster. I am for political transparency and a belief that there is some identifiable difference between procedure and substance. By the way, lest anyone believe I am violating our sacred Prawfs motto--I made the same basic argument while teaching Legislation in spring 2003, when my favored party was in the minority.

• Vice President Biden breaks any ties at a full-speed Senate. Now the Senate is at 99 while we await resolution in Minnesota, so 50 does it without a tie-breaker. Fifty-one is necessary when the Vice President is from a different party than the Senate majority.