Don’t let the title of this diary fool you. I think the Republican Senate minority should use the filibuster whenever they believe the Democrat majority is on the brink of passing legislation that would be bad for the country, which is likely to be a large majority of the time.

However, stepping back for a moment from the results of last week’s election results, I believe that the 60 vote requirement for cloture (end of debate and commencement of voting on legislation or a presidential nominee) has hurt the cause of conservatism.

Spiral’s Definition of a Filibuster: (Using the Senate’s 60 vote cloture rule to prevent legislation from getting a vote or to prevent a president’s nominee from receiving a confirmation vote.)

Mention the idea of reforming the filibuster rule to many conservatives and the response is that we need a 60 vote requirement in the Senate (out of 100 US Senators) because otherwise bad legislation would get enacted by a majority. We need to be able to block bad legislation when we are outvoted/outnumbered. The filibuster is “conservative” in the sense that it allows a majority of US Senators to “conserve” the status quo.

This sounds good in theory. But in practice bad legislation gets enacted despite the filibuster while good legislation gets defeated by it. The same is true for judicial nominees. The 60 vote cloture requirement might have killed several conservative judicial nominees during George W Bush’s presidency. But it never caused the defeat of President Clinton’s activist judicial nominees. (In the 1990s procedures other than the filibuster were used by Senate Republicans were used to kill Clinton nominees while the Republicans held the majority of the US Senate.)

There are several simple explanations for this. The first is that the news media labels Republican filibusters obstructionism, while Democrat filibusters are either not covered by the news media or applauded by the news media as examples of profiles in courage. The result is that Republican filibusters are short-lived and the bad legislation eventually passes. Democrat filibusters successfully kill the good legislation or the conservative nominee for the courts or executive office.

I’m a strong believer in the philosophy that you play by the same set of rules that your opponent plays by. So, I would not suggest that Republican Senators restrain themselves from using Rule 22 (the Senate’s 60 vote cloture rule to end debate). I suppose they could do this and then, on some future day when the Republicans obtain majority status in the Senate, tell the Democrats that they should live by our positive example. But history shows that the Democrats are more interested in winning the issue at hand while Republicans are more interested in convincing themselves that they are more civilized in political combat than their Democrat counterparts.

So what am I proposing? Republicans should propose a Senate rule that would make it possible to end debate with 51 votes instead of 60 votes. There would be one important difference. Currently there is a two day delay between the time a cloture motion is filed and when the cloture motion is voted on. The new 51 vote cloture rule would expand this delay to seven days. This would have the salutory affect of letting Senators have time to read legislation before voting on it.

Conservatives often complain that election results don’t seem to mean anything, at least when conservatives (or at least Republicans) win elections.

We saw this after the 2002 and 2004 elections. We won control over the US Senate and the White House but we still lacked the votes to get conservative judicial nominees onto the federal court of appeals. In a few months all of those vacancies on the federal court of appeals created by Democrat filibustering and Republican assistance to that filibustering (i.e. Gang of 14) will be filled by ACLU oriented nominees. The results could set the US back significantly in all areas of law.

Since Republicans consistantly fail to use the filibuster as effectively as the Democrats (notice how the Democrats successfully filibustered drilling in ANWR?), it would be better if the Republicans offered to dramatically change it so that, in the present and future, the majority rules.