Over the years, I would often bring up an offbeat idea in my column that no one else was making, and my dad would never accept it unless he had read it in the New York Times. It's what I referred to as the “If this was so smart, why hasn’t the New York Times written about it?” gambit. My answer was always that I had thought of it first, and they just haven’t yet -- but alas, that never held any water. Periodically the Times would subsequently make the same point that I had weeks (or months) early, and I’d bring it to his attention. He’d accept it then, although I still couldn’t build up any carryover points by being right numerous times. It was only on a one-time, after-the-fact basis. For the longest time, as I've heard Democrats complain about the filibuster and wanted to get rid of the rule, I've argued against that. I understood what was being complained about and why, but my feeling was that the problem wasn't with the filibuster, but how the rule had changed and been abused over the years. Once upon a time, if you wanted to filibuster, you had to literally stand up, not ever take your seat and talk. Or pass along the right to talk to someone else -- but they would have to stand and talk, not sit down, no bathroom breaks. It not only was a physical challenge, but it showed to the entire country who specifically was filibustering and blocking the Senate from moving forward, keeping legislation from passing. There was both a physical challenge and political risk to filibustering. You had to stand and talk. Most famously, this was used in the final sequence of the classic movie, Mr. Smith Goes to Washington, when Jimmy Stewart stays standing on his feet for days, finally collapsing in exhaustion -- but winning the day. In more recent days -- and in realty -- state senator Wendy Davis famously held a 13-hour filibuster to stop an anti-abortion bill in Texas, where they not only still have the old U.S. Senate room about standing during a filibuster, even far-more draconian rules, including not only having to speak exactly on-topic the entire time but also not having any assistance of any kind. (She was successfully challenged for straying off-topic twice and having a fellow-Senator help her with a back brace.) But today, in the U.S. Senate, the only thing needed to "filibuster" is to basically say, "I'm filibustering" and then going out for lunch. If Republicans don't want to get rid of the filibuster rule (and there's no "if" about it) or Democrats can't get enough votes to end it, then perhaps they should try to see if the Senate could return to the original rule on how filibusters actually worked. Don't get rid of the filibuster -- just make a filibuster a filibuster! Not a check box like ordering at a diner. I bring this up because on Wednesday, there was a long op-ed in -- wait for it... -- the New York Times saying the very same thing! The article even had a still from Mr. Smith Goes to Washington. O huzzah! While I'm sure my father would have initially thought my idea was not workable, I feel comfortable thinking he would now think that it made great sense. Especially since it was written by two eminent lawyers -- Burt Neuborne, a professor at New York University Law School, and Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law. (By the way, the reason I found out about the article is because a friend -- who I've been yammering about my filibuster idea for years -- read the op-ed, and sent me a link to it, noting that "I think you will like this. And he had no idea about the “If this was so smart, why hasn’t the New York Times written about it?” gambit.) You can read the full article, "Make the Filibuster Difficult Again: Here’s a way to address the tactic used to stall the Senate and upend presidential agendas" here. And what I most like about that title is that it's the very point I've been making for years -- you don't have to get rid of the filibuster, just make it hard to do. Like it initially was written and intended. Among the things they write, as they go through the interesting history of filibusters in the U.S. Senate was -- "But what if a genuine compromise were possible that preserved the Senate filibuster as a protection of individual conscience while giving President Biden a fair shot at enacting a desperately needed Covid-19 relief package? Such a compromise exists, we believe, by restoring the original “speaking filibuster,” made famous by Jimmy Stewart in 'Mr. Smith Goes to Washington,' in place of the modern version. "In the beginning, from 1789 to 1806, debate in the Senate could be ended at any time by majority vote. In 1806, the Senate abolished that rule, leaving no way to cut off debate. This decision gave birth to the filibuster to delay or block legislative action. This involved a senator holding the floor continuously, as Mr. Smith did (not easy), or to act in carefully choreographed relays with like-minded colleagues (also not easy) and prevent a vote on the merits." And they end by writing -- "The filibuster has already been abolished for Supreme Court confirmations, executive branch appointments and lower federal court nominations. If a filibuster must exist in the Senate, let it be the original “speaking” version that protects the conscience of the minority without turning the Senate into a super-majoritarian body. Hopefully all Democrats can agree to this reform. It would go a long way to allowing Mr. Biden’s legislative agenda to succeed." Much as I fully agree with what they wrote, and love that it overlaps with my braying at the moon for years, I also like that one of the authors of that piece, Erwin Chemerinsky, went to Northwestern when I was there. Though I didn’t know him, he was the debate partner of my two-years roommate, Jim Backstrom (who himself had an eminent career and later went on to head the Justice Department's Anti-Trust division based in Dallas. So, as you might imagine, yes, they were a very good debate team…) I do have vague recollections of meeting him a time or two, but the important thing is that after all these years, it's nice that we overlap in our our thinking on this. So, the lesson here is that if you do stand on your feet and talk about something long enough, sometimes others will start talking about it, too...
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AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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