Now that Scott Brown has been sworn in as Massachusetts’s junior senator, the Democrats have lost their filibuster-proof majority.  Never mind the fact that it is nearly impossible to get 60 members of the Democratic caucus to agree on anything of value.  Joe Lieberman and Blanche Lincoln are not likely to agree with Russ Feingold or Tom Harkin very often, at least when it comes to ground-breaking social legislation.  I’m not convinced that the loss of the 60^th vote means very much at all.  The watered down health care bill is a perfect case in point.  Is there anyone who really thinks the proposed bill would have made much difference in either the price, or the quality, of our nation’s soaring health care costs?

So I am not very concerned about losing that 60^th vote.  I do have a minor suggestion, though.  Can we stop using the term “filibuster-proof majority”?  Let’s remember what a filibuster is.  A filibuster occurs when a senator takes advantage of the Senate rules allowing unlimited debate on a bill.  Unlike the House of Representatives, there is no limit to the amount of time allocated to a senator to debate an issue.  It is a grand senatorial tradition that reaches back to the time of the Roman Republic.  Back then, the Roman Senate had a rule that would require its business to conclude by dusk.  The great statesman Cato, who opposed granting senatorial approval to Julius Caesar’s grasp for dictatorial power, would speak until nightfall to prevent a vote from taking place.  That was the first use of the filibuster in recorded history.

In the United States, the first Senate filibuster occurred in the 1830’s.  The tool gained traction in the years leading up to the Civil War, but then dropped from frequent use until the 1930’s.  Senator Huey Long used the filibuster on numerous occasions to inhibit some of Franklin Roosevelt’s New Deal legislation.  Once in 1935, Long spoke for more than 15 hours.  At one point, when he ran out of germane things to say about the bill being debated, he began reading recipes from a cookbook.  Only after he had to leave the podium in the wee hours of the morning to use the restroom was the Senate able to bring the debate to a close, and that was only because a quorum of senators remained in their seats asleep until Long left the room.

Strom Thurmond holds the record for the longest filibuster.  In 1957, he spoke in opposition to the first Voting Rights Act.  He began his filibuster by reading each of the 48 states’ voting statutes.  He read and discussed a Supreme Court decision from years before.  He did the same with the Declaration of Independence and the United States Constitution, including the Bill of Rights.  Once he had exhausted those documents, he recited George Washington’s Farewell Address, and opined on it as well.  After 24 hours and 18 minutes, Thurmond was so fatigued and hoarse he could no longer continue.  He closed his filibuster with one of the greatest understatements of all time:  “I expect to vote against the bill.”

Of course, the Voting Rights Act passed.  So did Huey Long’s hated New Deal legislation.  The fact is filibusters in the United States rarely prevented a vote from taking place.  They rarely succeeded in their objective.  That is the big difference with the current situation.  Now, the simple threat of a filibuster brings the business at hand to a screeching halt.

There has not been a true filibuster in the United States Senate since the early 1970’s.  What we have had since then are cloture votes, not filibusters.  The political parties strive for “cloture-proof majorities”, not “filibuster-proof majorities”.  In 1975, the Senate changed the rules so that the simple threat of a filibuster was all that was needed to stop debate on an issue.  If 40% of the senators oppose a bill, they can prevent it from coming up for a vote.  If a bill’s opponents do not have the support of 40% of the Senate, the majority can vote for “cloture”, which halts debate and forces a vote.  If more than 40% oppose the bill, the opponents can prevent cloture.  That is a far cry from a real filibuster.

A filibuster required stamina.  A filibuster required passion.  You might have had more than 40% of the Senate oppose the Voting Rights Act, but with few exceptions, other senators did not oppose the bill with enough conviction to speak against it for hours on end.  Does anyone really think there are many senators today whose opposition to the watered down health care bill is so strong that they would be willing and able to speak for 10 or 12 or 24 hours in opposition to it?  Frankly, I don’t think Mitch McConnell or Jeff Sessions have the physical fortitude for it.   Even if they did, they would eventually wear themselves out, and someone else would take the floor and move to bring the bill to a vote.  It is highly unlikely that there would be enough filibusterers to keep the vote from taking place.

There were good reasons for the 1975 change in Senate rules that stopped filibusters from taking place.  When a senator held the floor for hours on end, all other legislation came to a stop.  Now the Senate can take up other business while the bill being “filibustered” is laid aside.  That is a good thing.  Still, I think the 1975 rule change has harmed the process more than it has helped it.  It is the ultimate expression of laziness and unaccountability.  If someone really opposes legislation with passion and conviction, let him prove it by standing up and speaking for 15 hours or more.  And then, let the rest of Congress take a stand and vote.