Op-Ed Contributor
Make My Filibuster
By DAVID E. RePASS
David E. RePass is an emeritus professor of political science at the University of Connecticut.
New York Times
March 1, 2009
PRESIDENT OBAMA has decided to spend his political capital now, pushing through an ambitious agenda of health care, education and energy reform. If the Democrats in the Senate want to help him accomplish his goals, they should work to eliminate one of the greatest threats facing effective governance — the phantom filibuster.
Most Americans think of the filibuster (if they think of it at all) through the lens of “Mr. Smith Goes to Washington” — a minority in the Senate deeply disagrees with a measure, takes to the floor and argues passionately round the clock to prevent it from passing. These filibusters are relatively rare because they take so much time and effort.
In recent years, however, the Senate has become so averse to the filibuster that if fewer than 60 senators support a controversial measure, it usually won’t come up for discussion at all. The mere threat of a filibuster has become a filibuster, a phantom filibuster. Instead of needing a sufficient number of dedicated senators to hold the floor for many days and nights, all it takes to block movement on a bill is for 41 senators to raise their little fingers in opposition.
The phantom filibuster is clearly unconstitutional. The founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.
And fixing the problem would not require any change in Senate rules. The phantom filibuster could be done away with overnight by the Senate majority leader, Harry Reid. All he needs to do is call the minority’s bluff by bringing a challenged measure to the floor and letting the debate begin.
Some argue that this procedure would mire the Senate in one filibuster after another. But avoiding delay by not bringing measures to the floor makes no sense. For fear of not getting much done, almost nothing is done at all. And what does get done is so compromised and toothless to make it filibuster-proof that it fails to solve problems.
It also happens to make a great deal of political sense for the Democrats to force the Republicans to take the Senate floor and show voters that they oppose Mr. Obama’s initiatives. If the Republicans want to publicly block a popular president who is trying to resolve major problems, let them do it. And if the Republicans feel that the basic principles they believe in are worth standing up for, let them exercise their minority rights with an actual filibuster.
Please read the complete article at:
http://www.nytimes.com/2009/03/02/opinion/02RePass.html... And please e-mail this article to your friends and post it on other progressive discussion boards you may be registered with.
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If the Republicans organize a Senate floor filibuster against legislation or appointments, the Democrats have the following options.
1. They can surrender to the mere threat of a filibuster and withdraw the nomination or bill.
2. They can surrender to an actual filibuster after taking one or two quick cloture votes to give the appearance of resistance just before they withdraw the legislation or nomination rather than let a filibuster come to a conclusion.
3. Let the Republicans filibuster until the public tires of Republican obstructionism and 60 Senators finally agree to end debate and proceed with an up and down vote.
4. Use the so-called "nuclear option" in which the Senate easily changes Senate rules which would require 51 votes to approve legislation or an appointment and end a Republican filibuster.
So what really is the "nuclear option" which scared the crap out of Senator Reid and other Democratic Senators in 2005?
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In U.S. politics, the nuclear option is an attempt by the presiding officer of the United States Senate to end a filibuster by majority vote, as opposed to 60 senators voting to end a filibuster. Although it is not provided for in the formal rules of the Senate, the procedure is the subject of a 1957 parliamentary opinion and has been used on several occasions since. The term was coined by Senator Trent Lott (Republican of Mississippi) in 2005
The Nuclear Option is used in response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.
http://en.wikipedia.org/wiki/Nuclear_option 
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