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Pointing out the obvious can sometimes be useful if you have a big enough megaphone. Washington Post staff reporter Ezra Klein was handed that opportunity this past Sunday when that paper’s prestigious Outlook section printed his commentary on “dysfunction” in the Senate: “After Health Care, We Need Senate Reform.” He got it right that the Senate “cannot govern,” especially itself, but he blew his chance to say anything to help readers truly understand the Senate or fix its problems. Oblivious, the Outlook editors put the commentary on page one, above the fold.
I spent a career learning about the Senate – from the inside as a staffer for both Republicans and Democrats and as one who both exploited and ultimately sought to change some of the Senate’s more corrosive, modern day behaviors. When I started in 1971 with liberal Republican Jacob K. Javits (NY), a breed now extinct, I observed an institution able to cope – albeit never smoothly nor gracefully – with genuine national crises (Vietnam and Watergate). When I left the Senate staff in 2002, the institution was well locked into moral bankruptcy and intellectual incompetence in its pathetic efforts to address problems as politically glib as defining marriage and as serious as going to war.
To argue, as Klein does, that the problem is just one of permitting a simple majority to rule the Senate, rather than the filibuster-imposed supermajority of 60, is to reveal fundamental ignorance of how the Senate works (or doesn’t). Klein cites two ideas to fix things: to permit 51 votes to prevail on any bill after nine days of debate, or to phase out filibusters over eight years. That these proposals come from two sitting senators does not mean they should be taken seriously. Long timer Tom Harkin (D-IA) presumably knows how empty his non-starter “reform” is; newcomer Jeff Merkley (D-OR) apparently does not. Plus, even if these gimmicks were to be adopted, they would not change anything — certainly not the atrocious behavior of the individuals currently occupying the Senate.
Recall, please, how the Senate was designed in the Constitution. If you want efficiency and quick turn around in governance and legislation, you want a very different system. Clog and delay were built in from the get go — quite consciously. Guaranteeing minority rights was a central tenet of the design – as it is of democracy.
The filibuster is merely one of a thousand ways a small number of senators, even just one, can clog the system. Unlike the House of Representatives, the Senate was never intended to operate by majority rule; it was designed to operate by “unanimous consent.” That means, as we observed during the endless non-debate of the health care bill, that one senator can demand that the entire text of any bill or amendment must be read aloud – word by audible word – if one member simply utters the words “I object” at the appropriate moment. It also means that nominations, even bills, can be held up for days, weeks, even months before a majority leader tries to start what passes for debate in the Senate these days. And, it means any and all committee hearings must be shut down any time the Senate is in session – and a senator objects. The Senate rules are an almost endless opportunity for mischief, or worse, for any member or faction wanting to play the role – just like the racist Southern Democrats did in the 1960s when they stood, insistently and almost endlessly, in the way of civil rights bills.
The way the Senate operates also means that any senator with the brains and guts to hamstring George W. Bush’s blustering the country into war in October, 2002 could have done so. (But alas, there was no such senator.) It is a system designed, for good or ill, to permit a minority – sometimes tiny – to interpose itself, as obnoxiously or as honorably as they may choose.
Eliminate all that, and what do you get? You get the House of Representatives. If you want to fix the gridlock problem in Congress and fix it good, the best thing to do is to eliminate the Senate.
It’s a bad idea if you like democracy. As designed, the Senate has an important role: cooling the heels of excess, either from an overreaching executive or the House where the majority can run any tyranny it pleases.
Sadly, cooling things off is hardly what the Senate Republicans had in mind during the health care mess. Eschewing the role that George Washington described to Thomas Jefferson as a saucer to cool off some hot legislative tea, they sought instead to heat up their own political base and, of course, contributions to augment their selfish visions of future political self-aggrandizement. May they rot in ignominy for their efforts.
In selecting grubby, selfish, politicized agendas – many of them involving judicial nominations — the Democrats amply demonstrated during their minority years of the George W. Bush presidency (if that is what you want to call it) that they also love to exploit the rules and clog the system.
If Republicans and Democrats, either as factions or individuals, want to behave like pigs when they are in the minority, why do we make it so easy for them? For more than a decade now, we have seen the Senate ground itself on the shoals of the 60-vote supermajority requirement. It is invoked instantaneously whenever a controversy is even suspected in a bill or amendment. In today’s system, a senator needs merely to think about talking, and the Majority Leader breathlessly imposes the 60 vote requirement, ostensibly to avoid the delay and move things along. We literally have filibusters without anyone doing any public talking, but, of course, we get the delays as well; witness the parliamentary fiasco of the health care “debate.”
Make them pay for it. When was the last time we saw an actual filibuster? If an individual senator or a party wants to hold up the train because they have either a disgustingly selfish or admirably noble point to make, they should be permitted to explain themselves. And, for all to see. Senate rules, properly applied, give them an opportunity to do just that for as long as they care to take. C-SPAN’s cameras will be happy to broadcast their rationalization far and wide for every voting American to observe.
It also used to be that a filibuster required both energy and skill to carry out. It was not just a question of going to the Senate chamber and yakking up a storm; you had to know the rules — backwards and forwards — least another exploit a parliamentary goof to shut you down. In other words, you had to be extraordinarily well prepared before your gambit; you had to be skillful and alert in pulling it off, and you had to have the energy and determination to endure. For those simple reasons they were something of a show to be watched, and – far more importantly—they were rare. It would be an extremely useful exercise to force today’s Senate peacocks through such an exercise. Such sorting processes are always revealing.
Today, by raising just a pinky and not having any notion of troubling him- or her-self in the slightest, any hothead or ideologue from either party can impose the gridlock. As a result, real filibusters are very rare, but the delays, the parliamentary wrangles, and the grubbing for votes are more present than ever.
It also should be noted that some new trick to impose simple majority votes will not eliminate the poor behavior that many complain is caused by requiring the 60th vote. Just as senators Joe Lieberman (D-CT) and Ben Nelson (D-NE) whored about to win goodies to be vote number 60 in the healthcare jumble, so will they behave to be number 51. And, the minority will simply find new ways to impose itself on an ambivalent majority, which knows it will some day want to act as just selfishly – without working up a sweat — when it is in the minority.
It is not the rules in the Senate that need adjustment; it is the members. It is perhaps unrealistic to call for ethical, broad-minded behavior from the current crop of pretenders masquerading as members of the Senate. But perhaps a few of them might want to consider using the rules as they were intended – to permit legitimate minority rights whenever they are willing to go to the considerable effort to exercise them. For those aiming to exploit the rules for cheap, short sighted, or selfish reasons, make them work for it – right in front of the cameras.
Getting there would require leadership in the Senate with the strength of character, intellect, and will to impose higher standards of conduct. It would also require a public, especially journalists, willing to exercise the same. Good luck to us on that.
WINSLOW T. WHEELER spent 31 years working on Capitol Hill with senators from both political parties and the Government Accountability Office, specializing in national security affairs. Currently, he directs the Straus Military Reform Project of the Center for Defense Information in Washington. He is author of The Wastrels of Defense and the editor of a new anthology: ‘America’s Defense Meltdown: Pentagon Reform for President Obama and the New Congress’.