The Senate is broken.
I’ve written about this before here and here. But it has gotten worse.
As I wrote back in December:
The inherently anti-Democratic features of the Senate (where the 500,000 residents of Wyoming have the same voting power as 36 million Californians) have been greatly exacerbated by the now routine invocation of the filibuster, preventing a bill from coming up for a vote. This is a relatively recent development. That would be bad enough if we had two functioning political parties. But the Republican Party has become essentially nihilistic, refusing altogether to engage in the formulation of policy or any other serious efforts at actual governance. When you combine these two developments – the need for 60 votes in the Senate for even the most routine matters along with party-line obstructionism by a caucus consisting of 40 Senators – you have come very close to producing the complete failure of governance that Republicans hope will further their electoral prospects – even if it prevents Congress from addressing the nation’s problems.
Yesterday, Scott Brown was sworn in as the 41st Republican Senator. So now if party-line Republican obstructionism continues governance will have become impossible. “Au contraire,” you might say. “Democrats just need to compromise with Republicans.” But Republicans are not interested in compromise. They want to obstruct any major legislative initiative that President Obama and Congressional Democrats might support. Even if it is one of their own initiatives.
Am I being unfair? Let me give you an example.
The federal budget deficit has become a big issue. I’ve written about it before and hope to write another piece on the subject soon. Republicans oppose any and all tax increases despite the fact that federal revenue as a percentage of GDP last year was at its lowest level (14.8%) since 1950 – sixty years ago, before Medicare, Medicaid and many other elements of our modern government. (To put that in perspective, federal spending as a percentage of GDP averaged over 22% under Reagan. So even at Reagan’s spending levels we would have had trillion dollar deficits with our existing tax structure.) Indeed, Republicans continue to urge further tax cuts. They also want increases in military spending and recently have taken to opposing any attempts to reduce the growth in Medicare spending.
So what do Republicans actually want to do about the deficit? Their top budget guy in the Senate, Judd Gregg, along with budget committee chairman Kent Conrad, proposed a bipartisan commission that would come up with a package of deficit reduction proposals that could be accepted or rejected by Congress but not amended. For reasons I won’t go into, I don’t think this proposal would be likely to accomplish much. But I also don’t see any particular harm in it. In any event, the Republican leadership rallied behind it. Here is what Senate Republican leader Mitch McConnell had to say about it:
As I have said many times before, the best way to address the [deficit] crisis is the Conrad-Gregg proposal. . . . It deserves support from both sides of the aisle. … So I urge the administration, once again, to support the Conrad-Gregg proposal. This proposal is our best hope for addressing the out-of-control spending and debt levels that are threatening our Nation's fiscal future.
But then a funny thing happened. President Obama came out in support of it in hisState of the Union speech. It looked like it could actually get enacted.
So Republicans filibustered it. The Senate failed to overcome the filibuster by a 53 to 46 vote. But it would have passed with 60 votes if six Republican co-sponsors and McConnell had voted for it. That’s right. Six Republican Senators co-sponsored it – and then voted against it. Even worse – they didn’t actually vote against it, they voted against even allowing it to come up for a vote. Had it not been subjected to a filibuster, 53 votes would have been enough for it to pass. For the record, the six hypocritical co-sponsors were: Brownback (R-KS), Crapo (R-ID), Ensign (R-NV), Hutchison (R-TX), Inhofe (R-OK), and "Maverick" McCain (R-AZ).
As President Obama said earlier this week in Nashua, NH:
“This failed by seven votes, when seven Republicans who had cosponsored the idea suddenly walked away from their own proposal after I endorsed it,’’ an exasperated Obama told the crowd. “I said, ‘Good idea.’ I turned around, they’re gone. What happened?’’The editorial page editor of the Washington Post (who tends to echo the Republican party line) wrote:
No single vote by any single senator could possibly illustrate everything that is wrong with Washington today. No single vote could embody the full cynicism and cowardice of our political elite at its worst, or explain by itself why problems do not get solved. But here's one that comes close.President Obama has said he intends to create the commission by executive order but Republican leaders are now threatening not to cooperate, refusing to appoint members.
For more deficit hypocrisy (as I noted before), you have the recent Republican filibuster of the “pay-as-you-go” budget rules requiring that Congress actually pay for what it enacts. (These are the rules that helped produce record surpluses in the ‘90’s but that Republicans let lapse when Bush took office.) But for sheer reckless irresponsibility, it is hard to beat the Republican filibuster of the increase in the nation’s debt limit required to avoid a default on our national debt. What could be more non-partisan and uncontroversial than honoring the full faith and credit of the US government? Fortunately, both of those measures passed the Senate with 60 Democratic votes. But now Democrats only have 59 votes.
It used to be that a Senator might vote to break a filibuster – that is, to let a matter come up for a vote – but then vote against the actual bill. That is how Republicans passed the Medicare Part D bill (a $9 trillion unfunded liability) back in 2003. They got 70 votes to proceed to a vote but only 55 votes on passage. That makes perfect sense. You might be against something but still not be willing to obstruct an “up-or-down vote”. But Republicans are now routinely doing the opposite – attempting to obstruct a vote but then voting for passage. For example, last fall, Senate Republicans spent several weeks obstructing a vote on a bill extending unemployment benefits, requiring that it survive three cloture votes. But once it became clear they were eventually going to lose, Republicans all voted for the bill and it passed 98-0. Weeks of obstruction of a bill they voted for. This is now becoming common.
Last year, Senate Republicans undertook more filibusters than in all of the 1950’s and 1960’s combined. Two decades worth of filibusters in one year.
As bad as all that stuff is, Senate Republicans have just established a new historical benchmark. One Senator, Richard Shelby (R-AL) has put a “blanket hold” on the confirmation of all of President Obama’s appointees (at least 70) pending in the Senate. And the Republican leadership is backing him. What’s at stake? Pork for Alabama. And not just any pork. Tens of billions of dollars for a French company, some of which would ooze into Alabama.
A bit of background. There is actually no such thing as a “hold” in the Senate’s rules. It’s just a threat to obstruct the business of the Senate, most of which proceeds by unanimous consent. If a Senator feels really strongly about something he can threaten to blow up the Senate if he doesn’t get his way. Usually the matter is something of great concern to one Senator but of little concern to the Senate as a whole and he gets his way. Sometimes it is an objection to a particular bill or appointee. But often the target of the hold is just an innocent bystander held hostage for unrelated reasons. But never in the history of the Senate has a single Senator held up all of a president’s pending appointees. This is taking obstruction to an entirely new level.
So what has Shelby willing to blow up the entire Senate? He wants the Air Force to award a contract for refueling tankers worth at least $40 billion to the French-based Airbus consortium instead of to its American competitor, Boeing. The aircraft would be assembled in Alabama. Coincidentally, the political action committee of Airbus’s US partner, Northrop Grumman, has contributed over $100,000 to Shelby (and that is only part of the largesse Shelby has collected in connection with this project).
Surely, Shelby’s fellow Republicans are outraged by this behavior, right? Actually, no. In fact yesterday, for some reason, Shelby couldn’t personally make it to the Senate floor to impose his blanket hold, so Senate Republican leader McConnell did it for him. So this has now become a Republican hold not just a Shelby hold. (Weren’t Republicans supposed to hate the French? And pork? But they are now blowing up the Senate in defense of Le Porc Français. I’m so confused.)
The Senate is broken. It has always operated by arcane rules that would shut the institution down if any single member actually insisted they be followed to the letter. (If you don’t believe me, just read this explanation of what a “hold” really is from a procedural standpoint.) It has always operated on the basis of certain unwritten rules that assume it is some sort of club of gentlemen who will always find ways of working together in a collegial manner. Yes, the opposition party can filibuster, but only occasionally and only on matters of deep conviction (like denying civil rights to people of color). Yes, a single Senator can put a hold on a bill or a nomination, but that power is used sparingly. But if one entire party chooses to obstruct all the major business of the chamber, for no purpose other than to cause the party in power to fail, it simply can’t function. The exception has now become the rule.
What’s the solution? It’s time to get rid of the filibuster. That is a big, weighty topic that I’m not going to tackle at length here. And I have little hope that it will ever actually happen. But we should all be clamoring for it. This is not a radical step. The filibuster as we know it today is a recent development.
The founders of this country debated the idea of requiring supermajority votes and decided against it except in limited cases specified in the Constitution like impeachment (a step not to be undertaken lightly) and ratifying treaties (the founders were skeptical of foreign entanglements). The problem with a supermajority requirement (which we effectively now have in the Senate) is that it puts the country in the position where no one can govern. That is what has brought California to its knees (where a two-thirds vote is of the legislature is required to pass a budget). You can have a 59-vote majority in the Senate and still not be able to pass legislation. So who do you hold accountable in that situation? No one is in charge. No organization can function with no one able to govern and no ultimate accountability.
Senate rules require a two-thirds vote to change its rules. But there is a twist. The Constitution says that each House of Congress can make its own rules. And the Supreme Court has consistently held over over the years that a legislature may not bind its successors. One Congress cannot make rules that control future Congresses. Every two years, a new Congress convenes. The current Congress is the “111th Congress.” When the 112th Congress convenes in January of 2011, it can adopt its own rules by majority vote. As a matter of convention, the Senate acts as if it is a “continuing body” when it comes to the continuity of its rules. But as we are seeing now with things like abuse of the filibuster and holds, convention is just that – convention. If a future Senate decides to abandon that convention, as a Constitutional matter it can. The problem, of course, is that every Senator has an ego the size of a supernova and doesn’t want to surrender his or her own ability to obstruct the work of the Senate. And there is a “status quo bias” that causes people to defend existing things (like the Electoral College) that they would have trouble justifying as an initial matter.
The filibuster is not in the Constitution and it was never intended as a routine supermajority requirement. It has just evolved into one and only very recently. It has made it nearly impossible to tackle big problems. Indeed, when was the last time Congress successfully tackled a big problem? I would say the last time was dealing with the deficit in the ‘90’s. Since then? Immigration reform? Failed. Privatizing Social Security (however misguided)? Failed. Addressing global warming and energy? Unlikely. Reform of a broken health care system? Increasingly doubtful. In every case, the hang-up has been or is the Senate. During the Bush years, cutting taxes and creating a big new entitlement program, without paying for any of it, didn’t require any tough choices. And even the tax cuts were enacted by abusing the budget rules to allow them to pass by a bare majority.
The Senate is broken. And if we don’t fix it, it will break the country. UPDATE:
I am humbled. Gail Collins said the same thing much better than me in less than 1000 words.