While all the hoopla over Richard Shelby’s hostage situation is a little overhyped – if not him, some other Republican would have held each and every one of these nominees – it does amount to what you would call a “teachable moment” about the dysfunctional Senate. Anyone who thinks that the fillibuster is merely a protection of minority rights need only look at the Shelby blanket hold. It is the manifestation of a Parliamentary era of ideological rigidity combined with a supermajority process of veto points, along with a political system that rewards the minority for frustrating a majority. It’s a formula for American decline, to put it as simply as possible. We are all Colorado Springs now.
You’re finally starting to see the White House dip their toe in the water on the question of whether to fix the broken Senate. Vice President Biden, himself a creature of the Senate for 36 years, is willing to discuss reform.
Washington (CNN) – Moments after swearing in Sen. Scott Brown, R-Massachusetts, whose presence in the Senate means Democrats no longer have their 60-vote filibuster-proof supermajority, Vice President Joe Biden told reporters he thinks filibusters have been abused in recent years and that the Senate should consider reforms.
“It’s a useful tool, it is legitimate. But from my perspective, having served here, elected to the Senate seven times, I’ve never seen a time when it’s become standard operating procedure,” Biden said. “You want to get anything done, you have to have a supermajority.
Biden noted that filibusters are not called for in the Constitution and the threshold was changed once before – from 67 votes to 60 votes – when it was “recognized as increasingly difficult” to get bills passed [...]
“Any President in the future, having to move through anything he or she wants, requiring a supermajority, it’s not a good way to do business,” he said.
Robert Gibbs yesterday started talking about up or down votes for political appointees. And the White House blog posted a case study of Martha Johnson, the new head of the GSA, who was confirmed by a 96-0 count, nine months after she was nominated for the position.
This isn’t just a problem for nominees; it’s become a problem for legislating, too. Historically, the filibuster has been used as a way to try and reach a bipartisan compromise; now it’s just a tactic used to gum up the works. The Senate has had to cast more votes to break filibusters last year than in the entire 1950s and ’60s combined. This has prevented an honest debate from taking place, which has made it impossible to find agreement on important legislation that would benefit working families in this country.
I understand the desire to cast this as radical and new and different, and to an extent it is. But the supermajority filibuster, in the case of political nominees, serves basically no function. The President is entitled to his own staff, and I think you’d get 90% support for that proposition if posed to the country.
Indeed, the problem is the US Senate itself. Sherrod Brown talks about in the above clip following Tom Udall’s lead on changing the Senate rules at the beginning of the next Congress, and taking a year-long effort to educate members and the public about the dysfunctional rules. For some that’s too long to wait. Rep. Jerrold Nadler (D-NY) told me on Monday that the Senate should simply enact what was called “the nuclear option” to set a precedent for majority-rule votes (explanation here). “The Senate is paralyzed, it can’t do anything, and that helps conservatives, who by and large don’t want to do anything, more than liberals,” Nadler said. “We could change it if we use the nuclear option, but Democrats won’t because they’re unwilling to use such drastic measures.”
Nadler is not the only member of the House frustrated with the pace of the US Senate.
Politicking in the upper chamber is squarely to blame, as it has obstructed the chamber from progressing on the healthcare front, adopting a green energy bill, passing a jobs bill, introducing a financial regulatory reform package or finishing a student loan bill, Rep. John Larson (D-Conn.), told MSNBC’s Dylan Ratigan.
Ultimately, the Senate’s legislative pace has not only frustrated Democrats in the House, who have passed all of those bills, but the American voters who sent them there to finish the job, Larson added.
“Theres a host of things that we’ve passed already, and there needs to be action in the Senate, and people are tired of it,” Larson said, noting he was “glad the president cited the House” for making more progress than the Senate in last week’s State of the Union address.
“The issue here is, whether it’s Democrat or whether it’s Republican, is [voters] want to see action,” the chairman added.
Americans have a hazy understanding of Senate procedure, which means a) they aren’t blaming Republicans for obstruction right now, and b) they wouldn’t blame Democrats in the future if they made it easier to govern.
So what is there to do while we wait for Sen. Udall to make his point of order next January? Democrats could “make them filibuster,” but that’s OK in theory and terrible in practice. Also this will apparently happen should we go to reconciliation, with a vote-o-rama of endless amendments (at least for a time), so there will be a case study. There’s the idea that the filibuster can force bipartisan cooperation, and Obama just needs to try harder. He’s bent over backwards so far, I don’t know what more he could do. And if anyone’s come up with a worse way to counteract this than Walter Mondale, I’d like to see it:
So here’s what Mondale thinks should happen. Democrats assert the constitutional principle that the Senate, by majority vote, has the power to make its own rules, at least at the beginning of a new session. A friendly presiding officer (in the current situation, presumably Joe Biden) rules in favor, based on the argument that the U.S. Constitution outranks the Senate rulebook. The chair’s ruling can be appealed, but a vote on a motion to table that objection cannot be filibustered and the chair’s ruling can be upheld by a simple majority vote. This would push put the same majority in a position, at the beginning of the next session, to push through a new filibuster rule, or to ban filibusters entirely. (Mondale does not favor the latter, by the way).
Faced with that clear threat, Mondale believes, relative moderates from both parties would quickly work out a backroom compromise that would change, but not abolish, the filibuster rule.
But that’s simply an unrealistic reading of the relative dynamic among the political parties. If individual Republicans succeed through obstruction, if the party as a whole succeeds through obstruction, what possible reason is there for them not to do so?
“In our system, if the minority party can create and enforce party discipline (which has never really been done before, but which the GOP has now accomplished), then OF COURSE there can be no ‘bipartisanship’ on major legislative matters, in the sense of (1) the minority adding provisions to legislation as the majority compromises with them, and (2) at least some minority party members then voting with the majority.
“In a parliamentary system, the minority party is not involved in helping write or voting for major legislation either. If you think about it, and as that exchange I quoted shows, that sort of ‘bipartisanship’ really can’t happen in a parliamentary system on issues where the minority party has the power to tell its members to boycott the majority’s major bills on final passage.
Party discipline has trumped bipartisanship. Sure, people still talk about working together, but they are constrained by the Iron Law of Institutions, which we’ve seen here in 2/3 rule California – it’s more important for members of an institution to grow their own power within their institution than to grow the institution itself.
We’re slowly working to an important moment on this. The Craig Becker nomination will provide an early test next week. If Scott Brown doesn’t throw a curveball and joins a filibuster to block Becker entirely, it will simply be time for a change. In the short term that could mean a raft of recess appointments (George W. Bush made 171, as a pre-buttal to the outrage). In the longer term, it’s time to end minority vetoes and return democracy to Washington.