Because the Washington media loves those like Bayh who position themselves as bipartisan or centrist (especially when it comes to the issue of the deficit), progressives derided his so-called “centrism” as mere political positioning that helped Republicans obstruct Democratic initiatives, and met his exit with a flurry of blog posts with titles like “Bye, Bayh” or “Bayh Low” (“Bayh” is pronounced “Bye” or “Buy” – thus explaining my overly complicated attempt at a joke in my blog title). Ezra Klein called him an “ordinary politician” and a “minor deficit hypocrite”. Jonathan Chait goes farther, and notes that “If Bayh’s loss is a “brain drain,” then the Senate is in even worse shape than I thought.”

I once had the chance, along with numerous other reporters and editors, to speak with Bayh in an off-the-record context. I’d say the group was quite favorably disposed toward him going into the discussion — here was a young, popular, telegenic moderate Democrat everybody could see on a presidential ticket soon. As far as I could tell, everybody came away thoroughly unimpressed. He said nothing especially disagreeable, it was just that he seemed so mediocre. He expressed himself entirely in terms of platitudes. Not a single interesting thought escaped his lips.

He had no better luck appealing to the other side. The allure of centrism is that it is at the edge between the left-most Republicans and the right-most Democrats, and thus the deals are made and the power is held in the center. Bayh (and Max Baucus, and most Senate Democrats, and even President Obama) have learned the hard way that there is no reason to be centrist if the other side – even at its left-most reaches – refuses to do anything but obstruct. But Bayh wasn’t close to right-wing enough for any Republicans on any key issues, as Ross Douthat says:

His big issue was supposed to be deficit reduction, but you wouldn’t catch him dead proposing anything remotely like Paul Ryan’s fiscal roadmap, with its detailed list of programs to be reshaped and reduced.  (Bayh preferred the “bravery” of punting the issue to a commission.) On foreign policy, he was a liberal hawk on every vote except the hard ones: He backed the Iraq invasion in 2003 and takes a hard line on Iran today, but in the debate over the surge, when being hawkish was suddenly costly, he sided with the doves. Wherever the Beltway conventional wisdom settled, there was Evan Bayh — and he was rewarded for it with endless presidential and vice-presidential chatter, which has followed him, absurdly, even now that he’s announced his retirement.

The incredible thing, however, is what Bayh has done since announcing his retirement.  A two-faced politician of average intelligence to the left and too far left for todays right, Bayh has grabbed the issue of Senate disfunction with both hands. He penned an op-ed for the New York Times on Feb. 20th that outlined his reasons for leaving the Senate, and decrying the “institutional inertia gripping Congress” and the fact that “Congress must be reformed”. Its a remarkably thoughtful document (I would urge everyone to read it through), and one that (in addition to Bayh’s media tour since announcing his retirement) has brought the issue of Senate reform and filibuster reform into the Washington Conventional Wisdom (yes, the CW does need to be capitalized). Bayh’s most important ideas are these:

Filibusters should require 35 senators to sign a public petition and make a commitment to continually debate an issue in reality, not just in theory. Those who obstruct the Senate should pay a price in public notoriety and physical exhaustion. That would lead to a significant decline in frivolous filibusters.

Filibusters should also be limited to no more than one for any piece of legislation. Currently, the decision to begin debate on a bill can be filibustered, followed by another filibuster on each amendment, followed by yet another filibuster before a final vote. This leads to multiple legislative delays and effectively grinds the Senate to a halt.

What’s more, the number of votes needed to overcome a filibuster should be reduced to 55 from 60.

It is not so surprising that many of those voices decrying Bayh’s legislative record and subsequent retirement are now singing his praises. Matt Yglesias and Ezra Klein are the most prominent, with Klein bemoaning the fact that Bayh decided to make Senate reform an issue after he decided to leave the Senate instead of staying in the Senate to fight for those reforms. I’m not sure I agree. I believe the whole saga speaks to my personal view of the Senate, which is that those on the inside of the Senate are unable to see the dysfunctions that cripple the institution. Bayh is probably smarter than I gave him credit for before this weekend – I think his op-ed proves that – but something about being in the Senate, whether it was the constant campaign or the hunt for legislative power, hurt his ability to see the Senate as it really is. The moment he decided to leave the Senate he saw the dysfunction, and despite the jokes about his involvement in the dysfunction he insisted on using that as his reason for leaving. I don’t want you to stay in the Senate, Mr. Bayh. You’re much better off as a living, breathing example of why the Senate needs to reform itself.

What the Senate is not allowed to do, however, is tell future senators what rules must apply to their proceedings. Because Reichelderfer prohibits a previous Congress from tying the hands of a future Congress, the rules governing Senate procedure in 2010 cannot bind a newly elected Senate in 2011. The old Senate rules essentially cease to exist until the new Senate ratifies them, so a determined bloc of 51 senators could eliminate the filibuster altogether by demanding a rules change at the beginning of a new session. Once the new Senate begins to operate under the old rules, however, this can function as a ratification of the old rules — essentially locking those rules in place for another two years.

Millhiser is basically arguing that two Supreme Court decisions, Newton v. Commissioners in 1879 and Reichelderfer v. Quinn in 1932, make it possible for each new Senate to eliminate the filibuster, since the new Senate (the next one beginning in January 2011) isn’t beholden to any Senate procedures from previous Senates.

Practically, from the Democrats’ point of view, I do how this helps anything. First of all, Millhiser does not mention the procedures with which each new Senate, after swearing in any new members, ratifies the new rules that the body functions under. If the Senate begins to proceed without changing anything, then that acts as a ratification, but how procedurally difficult is it for 51 Senators to push through a new set of rules when a functioning Senate (oh my goodness what an oxymoron) is all that it takes to not eliminate the filibuster?

Secondly, I can’t imagine the Democrats having the political will or ability to do something like this next January. They are almost certain to lose seats in November, and due to the specific seats that are up for grabs this year the seats the Dems are most likely to lose aren’t the most conservative Democrats (for a good roundup of next November, check out Nate Silver’s analysis. His most recent update is here). Thus, while there may be 51 or 50 Senators in this Congress willing to eliminate the filibuster, the median Senator next January is most likely going to be too far to the right to want to mess with Senate procedures in a way that would benefit the Democrats.

Finally, I can only imagine that this sort of uprising, if it took place, would need the approval and cooperation of Majority Leader Harry Reid, who I cannot imagine approving of something like this. It tends to be the longest tenured Senators who are the most likely to defend arcane Senate procedures like the filibuster, and I doubt Reid is any different.

Basically, liberals have been frustrated by uniform Republican opposition and the super-majority requirement since President Obama took office, and this is the first I have heard of this proposal. It is a very interesting idea, but I can’t imagine that it is anything more than a very intriguing shot in the dark.

Sure, in recent years, threats of filibuster have become more and more common — and getting 60 votes for key pieces of legislation has seemed to become evermore necessary. But at the same time, we rarely actually see senators filibustering, at least not like Jimmy Stewart’s character did in Mr. Smith Goes To Washington. Why?

The whole piece is worth a close read – though the title of the article gets to the gist of the matter: “How 41 Senators Control The Country Without Filibustering”. There currently are very few actual filibusters – the mere threat of one is enough to derail legislation (as we are currently seeing with the Health Care Reform legislation that has already passed both Chambers of Congress). This occurred, according to Senate historian Donald A. Richie, because:

…leaders — from Democrats Mike Mansfield and Robert Byrd to Republicans Bob Dole and Bill Frist — informally adopted the custom of no longer actually filibustering — mainly, Ritchie said, because filibustering was seen as a waste of time that only provided the filibustering minority an excess of attention.

It turns out that only one Senator from the filibustering group needs to be present to prevent cloture from occurring, but leadership needs 60 votes for cloture present on the Senate floor. Unfortunately, this busts the myth, heard from Republicans from 2004 to 2006 and currently heard from Democrats the country over, that the majority should just let the minority filibuster away until they are blue in the face. I’ve definitely voiced the opinion that Harry Reid should let Health Care Reform be filibustered, then go on camera comparing Republican filibusters to Strom Thurmond filibustering Civil Rights legislation in 1957 by reading his grandmother’s biscuit recipe (fun fact: Thurmond’s filibuster is on record as the longest ever by a single Senator at 24 hours and 18 minutes). Obviously, thats my flaming liberal side mixing with my (very dubious) political tactician side to come to an incorrect conclusion – letting Republicans filibuster would not be a good PR move for Harry Reid and the Democrats!

Once again, I would suggest that everyone read the TPM piece I linked to above, or Ryan Grim’s piece in the Huffington Post last February (during the stimulus package debate). The money quote:

“Delay in the Senate is not difficult and, frankly, the only way to end it is through cloture.”

Yes, delay is the Senate’s middle name.

But President Barack Obama’s first year has brought an unusual number of holds, and on unusually prominent positions. One year into the Bush administration, there were 70 appointees awaiting confirmation. One year into the Obama administration, there are 177. And dozens of those holds are directly affecting the agencies responsible for the United States’ security and foreign policy, amid two wars and an amped-up terrorism threat. The United States has no ambassador to Ethiopia, no head of the Office of Legal Counsel, no director at the International Bank for Reconstruction and Development, no agricultural trade representative.

So there you have it. 177 people who should be doing important government work are held up by partisan demands. And it is partisan – you can tell from the difference between President Obama’s unconfirmed nominees and previous administrations. It also has unintended side effects – besides the inefficiency of the federal government. Ezra Klein:

A little-noticed side effect of holds is that they reduce government accountability. There are 20 Treasury nominees awaiting confirmation. And that’s amidst the worst financial crisis since the Great Depression. Consider the implications of that, and not just in the performance of the Treasury Department. Many people — both Democrats and Republicans — want Obama to fire Geithner, or some of the people who work for him. But the chance of that happening is approximately zero so long as Obama can’t be confident in his ability to smoothly fill that position. If you can’t hire new people, then you can’t get rid of old people.

The White House has a full list of their nominees – confirmed and unconfirmed – HERE.

Overall, while I would probably take Coakley’s side of a 3:1 wager, her situation looks to be increasingly difficult. She is basically relying upon getting solid turnout from a “silent majority” of voters who have done little to make themselves seen and heard. We know that there are a huge number of potential such voters in Massachusetts, which remains a very blue state and which until the past three weeks had not behaved unusually in any obvious way. But the pollsters are no longer seeing and hearing from them.

So the question on everyones mind is: what does the result of tomorrows election say about the chances for health care reform? On the one hand, a win by Coakley would basically ensure the passage of a compromise bill, as negotiations between the Senate and the House have proceeded basically as expected, and both could pass the final bill in the next two weeks. However, if Brown wins, what happens? The Democrats would lose their “supermajority” of 60 seats in the Senate, and thus would be unable to break a Republican filibuster in the Senate. So, considering the stakes for not only the Democrats politically, but also more than 30 million uninsured Americans, what can we expect the Senate to do if Coakley cannot hold on?

Jonathan Chait at The New Republic has outlined the options for Congressional Democrats and the President:

1. Finish up the House-Senate negotiations quickly and hold a vote before Scott Brown is seated. Republicans will scream, but how could they scream any louder? It’s a process argument of murky merits that will be long forgotten by November.

2. Get the House to pass the Senate bill, and maybe use a reconciliation bill (which only needs a Senate majority to pass) to implement as many House-Senate compromises as possible.

3. Go back to Olympia Snowe. I have not seen any persuasive reporting, or even conjecture, about what Snowe is actually thinking. Her substantive demands have been met. By the end of the process, her only demand was to delay the bill by some unspecified time period, which is such a vacuous demand that it’s hard to believe it represents her actual beliefs. Did she turn against the bill completely? Did she decide that she couldn’t take the heat for voting yes? Or did she figure that, with sixty Democrats, her voted wouldn’t really be needed so there was no reason for her to take the heat? If options 1 and 2 fail, we may find out about Snowe.

Obviously, the alternative is option 4: Crawl into a hole and die

Setting aside the insanity of requiring 60% of a chamber to make something a law, as the Senate does with the filibuster, this incredibly unavoidable and very peculiar situation shows us another side of the insanity of Washington. It isn’t just the lawmakers. Its the Washington media. It doesn’t really matter what the situation is, every political situation must be explained by who won and who lost. Thus, the election tomorrow is only going to be discussed as a referendum on President Obama and the health care bill. If Coakley wins, it will most likely be by a narrow margin, which in the blue state of Massachusetts will be seen as a loss for Obama. If Brown wins, Democrats will more than likely still pass a bill by one of the methods that Chait described, and the Republicans and the media (who love a racket) will howl about how the Democrats are going against the will of the people. You can just tell its coming, and it is ridiculous. Not only will they have passed this bill with 59% of the Senate, but those 59 Senators represent 61.20% of the population of the United States (based on U.S. Census data). Not only THAT, but I really doubt that if Brown wins it will tell anyone anything about what the population of Massachusetts thinks about Obama or his health care plan. Massachusetts has universal health care, its plan is very similar to the current Senate plan (which is closer to what the final bill will look like), and it polls very highly. The only difference is that the Senate plan controls costs better than the Massachusetts plan that Republican Scott Brown voted for. Guess what Republicans like to pretend is the worst part of the health care bills? Its expense.

Will Fox News or MSNBC or CNN or Mike Allen (from Politico) or Mark Halperin (at Time) or any other MSM political reporter ever bring up any of these facts? No. They will ignore the fact that this election, whether Coakley wins or loses, is mostly about Coakley running a terrible campaign, being a lackluster candidate, Brown running a solid underdog campaign, and the economy being in bad shape due to the lack of any sort of fiscal sanity during President Bush’s term (yes, its still his fault).

But of course, this election is all about Obama, right?

President Obama has nominated a variety of well-qualified officials to fill key posts in the Treasury Department, including positions with jurisdiction over tax policy and international finance. Their nominations would be approved if the Senate were allowed to vote on them.

But that’s not happening, because Senate Minority Whip Jon Kyl (R-Ariz.) isn’t satisfied with — get this — enforcement of prohibitions on internet gambling. Kyl wanted enforcement in January, the administration said June, so Kyl effectively responded, “No Treasury Department officials for you.”

As Matt Yglesias points out, it might be a good idea to have an Undersecretary for Foreign Affairs or an Assistant Secretary for Financial Markets, especially during a time of world-wide economic crisis. But one Senator who disagrees with a completely unrelated issue can leave one of the most important Departments short-handed just to make a point to the President.

This strikes me as part of a larger issue with the Senate – in a similar fashion to the filibuster. I can’t be the first to make this point, but there is enough ego in the Senate to power the world for years to come after we run out of oil. That’s too much. We need an alternative energy source. It’s not really anything to do with individuals, though some of them are especially egotistical. And I don’t think its necessarily a personal failure of any individual Senators, though certain Senators really don’t help matters much. The real problem is the institution of the Senate – its rules and its history. The rules give each individual Senator too much power and, more importantly, too much incentive to slow down progress, make outrageous demands, or kill bills whenever they want, and that leaves Senators with the need to do these things in order to get what they want, because if they don’t then someone else will and that Senator will be the one that needs to be given something in order to pass a bill. The Senate’s history and sense of tradition keep it from changing any of these rules to make it more efficient and in touch with the world of the 21st century (as opposed to the 19th). I mean, who actually believes that the Senate is actually the worlds “greatest deliberative body” except Senators? The House of Representatives has already passed the stimulus bill, health care reform, an energy bill, financial regulations, and a jobs bill in 2009. The Senate? Just the stimulus package and health care – and both by the slimmest of margins.

Back to Senate holds, this is not a partisan issue – though Republicans are the ones doing all the holding at the moment. This is an example of a Democratic Senator, Sen. Carl Levin (D-Michigan) holding up the confirmation of President Bush’s anti-terrorism nominations. Same situation, just as ridiculous.

It just follows the playbook that every minority party has followed since 1994: stop the majority from accomplishing anything so the public will become frustrated with the majority and vote for the minority in the next election. Forget the fact that the minority could get significant concessions that would legitimately advance their agenda from the majority if they played ball – they just want the P.R. victory that comes with the opposition failing. This favors the status quo and makes it impossible to fix some of the difficult issues that this country needs to deal with. So now a party need insanely big, once in a generation majorities in both chambers of Congress, plus the President to get anything done. And as Democrats have found in 2009 – it’s still very difficult. I blame the Senate for enabling this.