The Democrats Versus the Filibuster: Time to Man Up

Want to really spook a senator? Just whisper the word filibuster. Lieberman is doing it over anything remotely resembling a public option, Nelson has a similar take on abortion language, and even Roland Burris is trying the filibuster threat on for size, albeit in an opposite direction.

But here's a really scary proposition: what if President Obama and Majority Leader Harry Reid throw up their hands and say, "OK, fine, go for the filibuster"? Could a filibuster attempt by the Republicans and possibly a few Democrats really be that bad? The more I think about it, the more I wonder whether the Democrats would be better off to pursue a bill they want, hold on to things they like (the Medicare buy-in and less restrictive abortion language and such), bring that to the floor, and say: this is our bill.

This, of course, flies in the face of the conventional wisdom, that any concession must be made to avoid a filibuster and shore up 60 votes by the time the Senate votes on the bill. As Eugene Robinson wrote in The Washington Post today, Lieberman and a handful of others have skillfully played this mindset to their advantage:

Sens. Byron Dorgan (D-N.D.), Mary Landrieu (D-La.), Ben Nelson (D-Neb.) and, especially, Joe Lieberman, the Connecticut independent, know how to play. Dorgan and Landrieu have been extracting concessions for the folks back home. Nelson has the Senate in knots over abortion. And Lieberman has managed to make himself, for now, the key player in the whole debate.

Lieberman didn't want a public option to be included in the Senate bill, and it's out. He decided he didn't like the idea of letting those 55 and older buy their way into the Medicare program—even though he has specifically endorsed the idea in the past—and so that's out, too. At this point, he almost seems to be making demands just because he can.

Reid, Robinson, points out, has dug himself into a hole: "He has made a bad situation worse. He announced that the Senate bill would include a public option, but didn't have the votes. He got everyone excited about the Medicare buy-in idea for a few days, until it got shot down."

From what I can tell, Reid has left himself with two options: He can continue to make the various concessions demanded by Lieberman and his brethren, creating a bill that liberals care less and less about passing. Or he can introduce a bill they do care about and face a filibuster threat. He can decide to challenge Lieberman and Nelson, start playing hardball, rather than appease them.

Civil-rights supporters settled on the latter method in 1964 when they went forward with the final debate over the Civil Rights Act. They faced 57 days of filibuster, including the famous 14-hour oration from Robert Byrd, before they were able to win enough support to close debate. And, in the meantime, a groundswell of support grew for the bill's passage; Sen. Everett Dirksen, a key player in the debate, heard from 100,000 constituents during the filibuster. The final effort passed 71-29, four votes above the then-necessary 67 to end debate.

To be fair, the Civil Rights Act is the exception rather than the rule; most filibustered bills do not go anywhere. The strategy is by all means a risky one. In 1964, I should note, the act's supporters did have to offer a compromise version of the bill in order to end the filibuster, weakening some parts of the original edition while still maintaining the major, anti-discrimination provisions. But at this point, the Democrats have already done a lot of weakening, dropping the public option and even the Medicare buy-in. If they were to kowtow to Nelson's latest demand—that states would decide whether they want to opt in to health-care reform—you can basically consider the bill gutted.

It's difficult for me to see what the Democrats have to lose by deciding to take the filibuster threat head on. Americans have much-shortened attention spans; I'd imagine there would be a fair amount of ennui directed toward Lieberman and Nelson for dragging the debate out (in fact, there already is). We could find out that Nelson is actually bluffing and does not want to go down in history as the senator who blocked health-care reform. Conversely, you could also see someone like Maine's Olympia Snowe anoint herself as the 60th senator—not the one to block health-care reform, but the one to allow it to succeed. Or, in the worst-case scenario, they retreat to the weakened compromise they are headed for now.

The civil-rights legislators had to wait 57 days to win enough support to end a filibuster. I'm willing to bet that most liberals out there would happily wait two months for a bill they want, rather than push through a bill they increasingly cannot stand.