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The Specter Haunting the Senate

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Columbia/Kobal Collection
Jimmy Stewart in the 1939 film Mr. Smith Goes to Washington

The United States Senate, wrote chief New York Times congressional correspondent William S. White in 1957, is “a body that never wholly changes and never quite dies,” a place “where the national past and the national future meet and soundlessly merge.” White wrote those words when the Senate was on the brink of a revolution: the next three elections would bring roughly fifteen outright liberals to the chamber, adding to the handful already there. This irrevocably shifted the balance of power away from the Southern conservatives, creating the conditions that made possible the passage of the Great Society legislation. Fifty-three years later, though, White’s description is again becoming all too true. The Senate, except for a few brief moments such as the burst of activity in the 1960s and 1970s, has been where progressive legislation goes to die—not always soundlessly, but almost always.

The passage of the health care reform bill was an anomaly, a product of the fact that for the brief period between Al Franken’s certification as the junior senator from Minnesota (he was sworn in July 7, 2009) and Scott Brown’s as the new senator from Massachusetts almost exactly seven months later, the Democrats had the sixty votes needed to invoke “cloture,” i.e., cut off debate and bring any measure to the floor. Today, as midterm elections loom in which Republicans anticipate substantial gains, we can see clearly that there will not be sixty votes for a controversial piece of legislation for some time.
The Senate’s version of the financial reform bill squeaked by in May with the backing of four Republicans from blue states (Scott Brown, Chuck Grassley of Iowa, and Olympia Snowe and Susan Collins of Maine). Though it contained some strong provisions, the Senate bill was not nearly as forceful as liberals had hoped on matters like requiring banks to spin off their proprietary trading operations. In late July, Democrats acknowledged officially what had been clear for several months—that no major energy bill would make it through the Senate this year, leaving the House of Representatives’ bill, passed the previous June, to expire, with no prospect that the matter will be taken up in the near future.

And when Congress returns to work next January, the Senate will likely have five or six or even eight fewer Democrats, with an outside possibility that they will lose control of the body altogether. Major progressive legislation will become impossible. Even if President Obama wins a second term and the Democrats retain control in the House of Representatives and maintain their hold on fifty-four or fifty-five seats in the Senate—a substantial majority, in other words—they will be able to pass only contingent and watered-down versions of their programs. In politics, we normally consider 55 percent a commanding majority, even a landslide; but in the Senate, having 55 percent of the votes usually gets you nothing.

Many will say at this point that it was always this way. No, it was not. While it’s true that the Senate has been more conservative and even reactionary than not throughout its history, notably with regard to the way it blocked civil rights legislation for many years, the fact is that obstructionism is empirically worse today than ever, or at least since 1917, when the current “cloture” system was first adopted. The idea that the Senate is supposed to behave as it is behaving today is one of several myths (or outright lies) surrounding the “world’s greatest deliberative body.”

The truth is that no institution of American government is more responsible for our inability to address pressing national problems than the Senate, and no institution is in greater need of reform. Another truth, alas: probably no institution is more resistant to reform. Nevertheless, Senate Majority Leader Harry Reid is trying, having placed filibuster reform on the Senate’s agenda, with the possibility that votes to change the procedure may be taken next January. “The filibuster has been abused,” Reid said in March. “Next Congress, we’re going to take a look at it.”1 This process has begun, with three hearings on possible reforms.

While all this is of concern to liberals at the moment, the problem of the Senate should trouble all citizens. Any party with a president and fifty-nine senators (counting the two independents who caucus with the party), not to mention a seventy-eight-seat House majority, ought to have a fair chance to enact its programs. It would need minority input, to be sure, but the specter of a minority veto, which some founders warned against, would not loom over all deliberations, as is the case today, thanks largely to the cloture rule. In fairness to both parties, when they have a decent-sized majority, they should not have to muster a supermajority. Chances of passing legislation without one, slim as they are, hinge on dispensing with current myths about the Senate. There are four chief myths.

The first myth is that the founders wanted the upper house to follow the principles of supermajorities, such as the sixty votes now needed to end debate on a measure. This idea is often supported by the famous statement of George Washington, who explained to Thomas Jefferson that the Senate would “cool” the inflamed passions of any given moment as a saucer cools hot tea. It’s true that this was the intention, which is why senators were elected for six years rather than two and were elected initially by state legislatures rather than directly.

But aside from limited instances, such as the expulsion of a member, it does not follow that the founders wanted supermajorities. As Sarah A. Binder and Steven S. Smith show in their book Politics or Principle? some founders—George Mason of Virginia among them—backed supermajority requirements, but many were suspicious of them. The Continental Congress, under the Articles of Confederation, had been run on the supermajority principle—most legislation needed the support of two thirds of the states, or nine out of thirteen, to pass—and the results were unsatisfying. James Madison acknowledged that “more than a majority” might be justifiable in limited instances but argued that requirements for a supermajority were open to a decisive objection:

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.

Alexander Hamilton echoed this view in Federalist No. 22: “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is…to subject the sense of the greater number to that of the lesser number.” He added that such a provision would “destroy the energy of government,” handing outsized power to “an insignificant, turbulent or corrupt junto.”2

The second myth is that the founders specifically sanctioned the filibuster. This view is advanced from time to time, mostly by conservatives, but it is simply not true. Of congressional rules, the Constitution says only this, in Article I, Section 5: “Each House may determine the Rules of its Proceedings.” As Gregory Koger points out in his impressively researched Filibustering:

The “right” to filibuster in the Senate is based on tenuous precedents and informal practices. At no point did senators consciously choose to remake their chamber or transform American politics. It just happened, and it happened so quietly we barely noticed.

Delaying tactics such as refusing to show up for a quorum began in the early 1800s, and the first filibusters, in the Mr. Smith Goes to Washington sense of holding the floor for hours on end, date to the 1830s. Filibustering was actually more common in the House of Representatives (under old rules) than in the Senate, until the Senate caught up in the 1890s with a spate of filibustering on issues such as returning to the gold standard. Binder and Smith, amusingly but probably accurately, attribute such filibusters to the fact that the renovation of the Senate chamber at the time resulted in better air circulation, permitting lengthier orations. In any case, the Constitution had nothing to do with it.

The third myth is that the Senate has consistently opposed any and all attempts to cut off debate and reform its procedures; that senators want things just the way they are. Many have and do, but there have been and are important exceptions. In the years leading up to the Civil War, Henry Clay of Kentucky and Stephen Douglas of Illinois, who represented opposing political parties—Clay was a Whig, Douglas a Democrat—concurred that debate in the Senate had gotten out of hand. Clay wanted to pass a motion to enable the Senate “to call the previous question”—that is, to permit a simple majority to force a vote on the matter at hand; which had been permissible until 1806, when the Senate deemed the rule unnecessary and let it drop. “Far from the rule being condemned,” Clay said in 1841, “it would be generally approved.”

Generally—but not wholly. In a maddening catch-22 that remains with us today, establishing the principle of simple-majority rule requires the backing of a supermajority of two thirds of the senators to make the change. A minority of senators, but enough of a minority, opposed Clay’s efforts, and the measure died. There have been numerous other instances when senators did try to move in the direction of fairness and limit the dilatory maneuverings that characterize the body. They did so by introducing in 1917 the cloture rule by which a vote of 60 percent can now close off debate; and they also did so by, for example, removing budgetary measures from the requirement for a supermajority to achieve cloture (the Byrd Rule of 1974). Precedents for reform, attempted and realized, are ample.

The final main myth is to be found in the so-called “little-harm” thesis. Defenders of the filibuster maintain that the supermajority requirement really hasn’t had much impact on the work of the Senate after all; it has killed legislation only rarely, and in several cases, its defenders maintain, it has improved legislation, making it more acceptable to the American public, cooling hot tea just as Washington envisioned.

This may be so in some instances. But typically, filibusters have put off for decades actions the nation should have taken years before—civil rights, notably, including anti-lynching laws. According to the Senate historian’s office, there have been 892 cloture votes since 1919, and 502 of them, or 56 percent, have failed. That is certainly not minimal impact on Senate business. As to the question of whether filibusters make legislation more broadly reflective of public opinion, this is difficult either to prove or disprove. Under a simple-majority requirement, obtaining the support of the fifty-first senator is decisive. Under the current rules, it is necessary to have the support of the sixtieth senator. There seems little basis for presuming that the sixtieth senator is more representative of the broader public than the fifty-first.

  1. 1

    See Manu Raju, “Harry Reid: Filibuster Reform Next Year,” Politico.com, March 10, 2010.

  2. 2

    For that matter, it’s worth noting that the Senate itself was the subject of intense debate. The Connecticut Compromise, which created the bicameral legislature and two-senators-per-state upper chamber, passed at the Constitutional Convention by just a 5–4 vote. At the time, the most populous state, Virginia, had only about eighteen times the population of the smallest state, Delaware (that’s counting Virginia’s 292,000 slaves as three fifths of that number, which was the law). Today, California has roughly sixty-nine times the population of Wyoming.

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