Time for The Lieberman Rule

Just three months ago, Joe Lieberman explained his opposition to a public health insurance option by telling a Connecticut newspaper that he instead favored expanding Medicare—a less cumbersome, more affordable way to extend coverage to some Americans, he claimed.

“If you’re 55 or 60 and you’re without health insurance and you go in to try to buy it,” Mr. Lieberman explained, “because you’re older…you’re rated as a risk and so you pay a lot of money.”

Maybe you know how this one ended. About a week ago, desperate to win Mr. Lieberman’s vote for health care reform, Senate Democratic leaders tentatively agreed to put the public option on the backburner and to replace it with….an expansion of Medicare that would allow uninsured Americans between the ages of 55 and 64 to buy into the program.

Mr. Lieberman responded by praising the Democrats for their willingness to compromise and hailed the proposed Medicare buy-in as a “giant step forward for uninsured Americans.”

No, wait.

That’s actually not what he said at all. He responded, in outrageous and thoroughly irrational fashion, by bashing the buy-in as a step toward socialism and announcing that he’d filibuster it.  Even more outrageous: the arcane rules of the Senate actually encourage Mr. Lieberman’s mindless posturing.

The basics of the filibuster are familiar to most: A minority of senators can halt action on just about any legislation before the Senate by extending debate indefinitely, and the only way to stop them is by lining up 60 votes to cut off debate and proceed to a final vote.

Many people assume that the filibuster, as maddening as it is, is somehow sacred—a tool that is essential to the Senate’s function and identity without which the delicate balance of power in Washington would be destroyed. But that’s not really true. The rules of the filibuster have actually changed through the years, and so has its application.

It used to be that the filibuster was reserved for extraordinary circumstances. Unfortunately, for much of the 20th Century, dozens of senators regarded pending civil rights legislation as an extraordinary circumstance. The filibuster, as Robert Caro details in “Master of the Senate,” was instrumental in keeping even the most elementary civil rights initiative—banning lynching, for instance—from becoming law for nearly 100 years after the Civil War.

Otherwise, though, the filibuster wasn’t commonly employed. The main reason for this was that both parties were, until relatively recently, ideologically fluid—racist Southern Democrats like Richard Russell shared a party label with liberal integrationists like Hubert Humphrey and Herbert Lehman, while right-wing Republicans like Homer Capehart (derided by Mr. Caro as “the Indiana Neanderthal”) belonged to the same party as liberals like Margaret Chase Smith. Broad and loose bipartisan coalitions were common and alliances shifted frequently, an inhospitable climate for frequent filibustering.

Today, though, party label and ideology are one in the same—a transformation that owes itself, ironically enough, the civil rights triumphs of the 1960s, which gradually turned Southern Democrats into Republicans and (once the Southern-dominated G.O.P. took over Washington) pushed the North’s “Rockefeller Republicans” into the Democratic fold. Bipartisanship in the Senate, as you might have noticed, is now a quaint anachronism.

This has made it easy to organize a filibuster. Both parties are now synched up with an ideology and cross-party alliances are rare, so senators no longer worry that joining a filibuster might alienate future legislative partners. Instead of being reserved for extreme circumstances, the filibuster is now an everyday tool of the minority party leader, who can rely—almost always—on the loyalty of his entire caucus.

The result is absurd. Sixty votes is now the de facto magic number even for relatively routine legislation—a ridiculously high barrier that forces unreasonable compromises. The need for 60 votes is the reason Democrats were forced to water down this year’s stimulus bill—which, it’s now widely agreed, wasn’t big enough. And it’s why Mr. Lieberman is now getting to live out his revenge fantasy, offering himself as the potential 60th vote for health care reform while demanding one arbitrary concession after another.

Filibuster rules have changed before. 67 votes—a two-thirds majority—used to be the magic number to kill one. And reforms in the 1970s exempted any legislation that reduces the deficit from being filibustered. There have been other changes, too—and it’s time for more.

Time for The Lieberman Rule