the consequences of 60, or, this town ain't big enough for both Harry Reid and the filibuster

The current Senate Majority Leader has just been dealt more power than any since the Carter Administration, though in truth he has both more and less than appears. Like the Republicans, the Democrats are more ideologically sympatico than they've ever been, so Reid just doesn't have to worry about major splits in the ranks and significant rebellious factions (despite Evan Bayh's threats to form the elusive agenda-less senate faction. Scary!). Sure, a handful of senators here and there can and will play contrarian for the papers, but it will be nothing like the Dixiecrat factions of old.

And yet, the smart money is on Harry Reid losing most of his battles, failing to advance Obama's agenda very far, and ultimately being unceremoniously dumped as Majority Leader. The reason is that expectations are going to be very high now for Reid to pass legislation with sheer brute force. Even people who know better are going to act as if Reid should be able to ram the president's agenda down the throats of the puny Republican minority in the same way Pelosi has been able to steamroll the House GOP delegation time and again since '06. And frankly, they aren't entirely wrong. Historically a Senate supermajority has always meant that the party in power can pass legislation at will, barring no serious internal divisions.

The de-publicized, or silent, filibuster has changed all that, however. Now a party with even just 40 senators can obstruct with impunity, filibustering every single piece of legislation that comes down the pike. Because of this change in procedure, even a party as utterly (and repeatedly) rejected by the voting public as today's Republican remnant can demand major concessions from the Majority Leader even when he can keep his entire party in line, because he must attain 60 votes to break a filibuster, and yet several prominent Democrats are too infirm to attend sessions reliably, such as Ted Kennedy and Robert Byrd.

What's funny about Reid's predicament is that, as is often the case with life's problems, it is a monster of Reid's own making. There are 2 different ways in the last 8 years in which Harry Reid could have prevented either the Republicans' abuse of the filibuster or the public's assumption that it isn't a big deal, and he backed down every time. The first one lies in Reid's tenure as Minority Leader, when he had the option of obstructing the Republicans and chose not to. Frist seemed to be able to pass anything he wanted (as long as it didn't have to do with Social Security) with 5-11 fewer senators than Reid now has. In fact, it appears that Reid's Democrats engaged in fewer filibusters even than previous Republican minorities. The second Republicans found themselves in the minority, however, they began filibustering at three times the previous year's rate, filibustering some 150 times in the last congress (the previous record was 58, also a Republican minority).

The other moment came when the rules for this session were enacted by Congress at the beginning of the year, and he neglected to revisit the filibuster rule even after suffering 150 filibusters in the 2007-8 session and even after Mitch McConnell openly admitted that the primary tactic of Senate Republicans would be obstruction via filibuster.

Thus it is expected that Reid should be able to do what Frist could do with 51 senators, though the truth is that he can't because, frankly, he isn't facing Harry Reid on the other side of the aisle.

It may already be too late for Reid, because it takes 67 votes to change the rules, and I don't think Franken will be enough to secure passage in a pinch, even with the sudden, convenient metamorphosis of Arlen Specter into a reliable progressive Democrat. If he does survive to 2011, though, has absolutely must reconcile himself with one simple, irrefutable fact: the decorum and camaraderie and willingness to be a minority partner in governance that existed in the Senates of the 1980's and before is long gone. The Republican party, Mitch McConnell included, has no interest in abiding by the old mores of the Senate because they believe that the stakes have become too high to worry about things like honor and precedent. Rules without teeth will not be followed, and an across-the-board 60-vote threshold is unacceptable in the United States Congress. Reid should take note of the hell states like California and Arizona are going through right now trying to deal with unworkable supermajority thresholds.