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Why not a "real" filibuster?

By Jack M. Balkin

Needless to say, there is much that I agree with in Jack's post on this serving as a potential "constitutional moment." But, for better and worse, I almost literally cannot imagine that there would be sufficient public support for the kind of move that Jack suggests, not least because the Democrats continue to be unwilling to make the fundamental case that this is indeed an exceptional situation. Why, for example, is Harry Reid not willing to require his adversaries to mount a "real" filibuster, which would require first moving into round-the-clock sessions and then forcing the Republicans (and Lieberman and Nelson) to stay up and hold the floor, knowing that anytime they left, Reid would be fully prepared to move for cloture, which requires only 60% of the voting members (not the entire membership)? Let Lieberman and his ilk make their case on C-Span, not only against the bill, but also against the most basic notion of "majority rule," which some people naively believe has at least some connection with the "democracy" we proclaim ourselves to be. If Obama and Reid can't stand up to thugs like Lieberman and Nelson [SEE BELOW], why do we think that Obama can stand up to a variety of world leaders who also do not wish us well?

I don't rule out, incidentally, the possibility that there are all-too-real arguments against the current bill, including the case eloquently made by Howard Dean in today's Washington Post. I do fear that this is a giant giveaway to US insurance companies. But that surely isn't the basis of Republican opposition.

UPDATE: I received a courteous post taking me to task for referring to Senators Nelson and Lieberman as "thugs." The poster was correct. I should have counted to ten (or 100) before hitting the "post" button, especially with regard to Sen. Nelson, who appears, on the basis of articles I read about him, to be genuinely committed to a no-abortion period position. I disagree with that view, but I confess to at least enough ambivalence to be respectful of it. If one really does view abortion as murder, then the "no compromise" position makes sense. This is, obviously, what makes abortion politics so excruciating, that it's so difficult to find a "let's split the difference" middle position a la most spending controversies (which comprise the bulk of the health bill fights). I'm not sure what the right label is to use with regard to Sen. Lieberman. I simply can't take seriously his self-presentation as the conscience of the nation, given his indebtedness to the Connecticut insurance industries and their presumed fear of any serious legislation that would threaten their monopolistic position vis-a-vis the delivery of health insurance (save for over-65s like myself and people too poor to be able to afford any health insurance). Perhaps "thug" is too strong even with regard to Lieberman. In any event, I do apologize to Sen. Nelson for my descent into Glen Beckism.

Full post as published by Balkinization on December 17, 2009 (boomark / email).