If the Founding Fathers had wanted the Senate to only be able to pass legislation with a super-majority of 60 votes, they would have (there are, in fact, several constitutional provisions that require a supermajority, e.g. overriding a presidential veto, which requires a 2/3 vote from both the House and Senate).
They could have, but they didn't. And I'm here to tell you that the filibuster is a boogeyman, a Boo Radley, not Oz but the sad man behind the curtain.
The Constitution does not require the Senate to include the filibuster or, more to the point today, the cloture rule (in its current form dating back to 1975) which allows the filibuster to be halted by a 3/5 vote. Per the Constitution, the Senate is free to create its own rules--in fact, it's free to amend its rules at the beginning of each new Congress (the 111th Congress will convene next January).
Many say that Senate Democrats would be foolish to abolish the cloture rule, or even just lower its vote requirement to a simple majority, because they would set themselves up to be hoisted on their own petard at some point in the future when they need to hold up some Republican legislation. The Senate rules even permit such a rule change with a simple majority vote. While that argument does make sense as far it goes, it ignores the current political atmosphere and the degree of damage done by the current legislative gridlock.
But I'd like to suggest that the failure here isn't the cloture rule, or even the ability of the opposition to argue indefinitely. The failure is in the will of the Democratic party leadership. A common refrain these days, to be sure, but I haven't seen the following advice bandied about:
CALL THEIR MOTHERFUCKING BLUFF!!!
That's right. Let those Republican senators get up there and actually perform the act. Racist southern senators did it in 1964 for 75 hours before caving. How long do you think they'd last under the scrutiny of today's 24 hour news cycle? In the superheated crucible of an actual filibuster, Republican falsehoods wouldn't have an entire month to spread like weeds as they did last August while Congress was out of session and the tone was set for the upcoming debate. Rather, those lies could be countered immediately and in force, exposing them for what they are--straws grasped at by obstructionists unwilling to make concessions.
Of course I understand that the purpose of the filibuster is to empower the minority and force the majority to negotiate. If the minority holds up the legislation it can take that opportunity to show the majority that a large part of the electorate is on its side, and that the majority would be unfair or unwise to neglect its concerns.
That's the idea anyway. But after last August's Palin-spawned "death panel" bullshit, when one of the opposition senators you've chosen to work with for the express purpose of reaching a bipartisan result starts parroting that same "death panel" bullshit, when another opposition senator is calling for the defeat of health care legislation to be your Waterloo, the signs were clear that lies in service of obstruction and political gain were all the minority had to offer.
To call the Republican bluff all the Democrats have to do is sit through a few days of rambling stupidity and lies, while waiting for the Republicans to shoot themselves in the foot and cave. Right when they're on the ropes, Mr. Obama swoops in to cash in the chips he's saved by staying out of the health care fray and delivers his patented soaring rhetoric peppered with well-reasoned breakdowns of the Republican fear-mongering.
The Democrats and Mr. Obama win the day, and with it a place in history.
A boy can dream, can't he?
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