I keep seeing some version of this headline: Senate Fails to Pass Popular Gun Control Legislation. I keep hearing radio and television news reporters repeating some version of this: “The Senate failed to obtain the sixty votes needed to pass the legislation.”

Those are lies. No, the Senate didn’t fail to pass legislation extending background checks to guns sold at guns shows and over the Internet — they were prevented from voting on the legislation. No, it doesn’t require sixty votes to pass legislation — it only takes fifty-one.

Here’s another lie: the Senate Republicans filibustered the legislation. They didn’t. They only threatened to filibuster it. Under current Senate rules, the mere threat of a filibuster is treated as an actual filibuster.

How the hell did we end up with a Senate in which the minority party has all the power? And just what the hell is a filibuster anyway? The term comes from the Spanish filibustero, which is derived from the Dutch vrijbuiter, which is translated as ‘freebooter.’ A freebooter is a sort of pirate — a mercenary who wages ad-hoc war primarily for the money in it, a seafaring hijacker. Like Edward Teach, better known as Blackbeard.

The original approach to the filibuster

In legislative terms, a filibuster is a tactic by which one or more members can hijack the debate over pending legislation, delaying it from reaching a vote. The intent was to give minority members a platform for voicing opposition to the proposed legislation, or to stall the vote while attempts were made to gather support from other legislators. This required the legislator(s) to take the floor of the Senate and hold it by continuously speaking.

Initially it was a rarely used tactic, partly because it required a great deal of effort and organization, and partly because it stopped ALL legislative activity. Nothing else could happen in the Senate so long as the filibuster continued. The filibuster is famously employed in the movie Mr. Smith Goes to Washington.

A more refined form of filibuster

In the mid-1970s, the rules were changed to allow other legislative business to take place during a filibuster. The new rules created the ‘virtual’ filibuster we have now. Even so, the tactic was rarely employed. In fact, the filibuster had only been used 413 times before 1990.

In 2005, Democrats (who were the minority party in the Senate) began to use the virtual filibuster more frequently, mainly to block some of President George W. Bush’s more controversial judicial nominees. When President Obama took office in 2009, the practice skyrocketed. Now almost every nomination for every judicial position is subject to the virtual filibuster, as is almost every piece of legislation offered by Democrats. The virtual filibuster has become the norm.

Let me just repeat that. The virtual filibuster has become the norm. Republicans have normalized the practice. That’s why lazy journalists continue to claim the legislation requiring background checks to be extended to gun shows and internet sales was defeated, even though the Senate was blocked from voting on it. That’s why lazy journalists continue to claim sixty votes are required to pass legislation.

It doesn’t have to be this way. The Senate Majority Leader has the power to change that. Harry Reid can modify the rules of the Senate. He can restore the talking filibuster. He can do away with the filibuster altogether (though that would be a bad idea). And Reid keeps threatening to reform the filibuster rules. Ten days ago he said this::

“All within the sound of my voice — including my Democratic senators and the Republican senators who I serve with — should understand that we as a body have the power on any given day to change the rules with a simple majority. And I will do that if necessary.”

The problem with a threat is that it only has meaning if the person making the threat is taken seriously. Nobody takes Senator Reid’s threats seriously.

Majority Leader Harry Reid

In fact, Republicans openly mock him. After the shameful virtual filibuster on the recent gun control legislation (which was supported by nearly 90% of Americans and more than half of NRA members, and which was approved by a majority of the Senate), Minority Leader Mitch McConnell posted this on his Facebook page:

So long as Democrats have ineffective leaders like Harry Reid, and so long as filibuster rules remain as they are now, and so long as Republicans in the hire of the National Rifle Association continue to thwart the will of the public, nothing is going to change.

A handful of freebooters have been allowed to rule the legislative high seas. That needs to stop.