The disease is, to be sure, really bad. Indeed, it begins to seem life-threatening, both to the Senate as an institution and to the political system it's part of. In dismissing the suit, Judge Sullivan did not heap praise on the practice of stalling legislation indefinitely. Indeed, he laid out in stark terms the appalling facts about filibuster abuse.
The number of actual or threatened filibusters has increased dramatically since 1970, and now dominates the business of the Senate. In 2009, there were a record 67 filibusters in the first half of the 111th Congress -- double the number that occurred in the entire 20-year period between 1950 and 1969.
By the time the 111th Congress adjourned in December 2010, the number of filibusters had swelled to 137 for the entire two-year term of the 111th Congress. During the 111th Congress, over 400 bills that had been passed by the House of Representatives -- many with broad bipartisan support -- died in the Senate without ever having been debated or voted on because of the inability to obtain the 60 votes required by Rule XXII.
These numbers ought to give anybody pause. The filibuster started life as a way to require the Senate majority to slow down; it has now become a way to make the entire Congress stop. What was once a rare and dramatic stopgap has now become a routine fact of legislative life. The filibuster against the Civil Rights Act of 1964, and the the heroic cloture vote that ended it, were high historical drama. The kind of filibuster we have today -- in which, for example, Senator Mitch McConnell introduced a bill and then immediately filibustered it to prevent it from passing -- barely qualifies as farce.
A legislative body that cannot bring itself even to vote on 400 bills really is not a legislative body at all -- it is a graveyard, where self-government staggers off to die.
If I think that, why am I glad the Judge Sullivan dismissed the Common Cause lawsuit? Simply because courts aren't suited to resolve every political problem. This question in particular is entrusted to the Senate itself by Article I, § 5, cl. 2 of the Constitution, which provides that "[e]ach House [of Congress] may determine the rules of its proceedings."
Nothing elsewhere in the text suggests that the courts should ride herd on those rules; and if federal judges begin disciplining Congress in this case, where would they stop? The Senate is, after all, the branch of Congress in which the Democrats hold a majority. Given the conservative dominance of the federal courts, I would think progressives would be hesitant about inviting Sam Alito and Nino Scalia to decide how the body shall operate.
The Democratic majority needs to handle this crisis itself, It can enforce filibuster reform through a rule change at the opening session January 3. These is an ongoing dispute about whether this would take 51 votes or 67 -- an unattainable super-majority. Pushing through reform with 51 votes -- or 50 votes plus Vice President Joe Biden -- has been called the "nuclear option" because it would represent a power play by the majority.