The world’s greatest dysfunctional body

Why the U.S. Senate can’t govern

Sarah was a regular volunteer for the Democratic Party after she moved to Nevada from the South. She first became aware of Harry Reid when he was running for lieutenant governor, and she had done some work on a couple of his campaigns over the years.

One evening in 2004, Sarah (not her real name) was at the county Democratic headquarters when she overheard some other workers talking about Reid’s efforts to protect the filibuster in the Senate against Republican efforts to invoke a “nuclear option” to stop filibusters. She couldn’t believe her ears, and the other volunteers were also confused by Reid’s actions. For as long as Democrats could remember, opposition to the filibuster had been basic Democratic Party doctrine. Nor was it just dogma to Sarah—as an African-American from the South, she had grown up seeing the filibuster used to keep her down. Now a man she had helped elect was leading an effort to preserve it. Tears welled up in her eyes, and she soon departed the office. She rarely came to party headquarters after that.

Sarah might have reacted even more strongly if she had known that the filibusters Reid was trying to save were imaginary. Imaginary—but terribly destructive of governance.

Majority rule ended

Some of the most polarizing issues of the era have been approved by narrow votes in the Senate.

The war over Kuwait was authorized by the Senate in 1991 on a 52-47 vote.

Clarence Thomas’s nomination to the U.S. Supreme Court was approved on a 52-48 vote that same year.

Two years later, President Clinton’s economic program won approval with 50 votes—including a tie breaking vote by Vice President Al Gore—against 49 in opposition.

But that was then. Today those simple majorities would doom their measures. In this century, legislation with solid majority support fails.

In the second year of George W. Bush’s administration, 56 of the 100 senators voted for an economic stimulus package, which therefore failed to pass.

In 2008, 51 senators voted for a windfall profits tax on oil, which failed to pass. This was shortly after 58 senators voted for a Senate rule against tax hikes, which also failed to pass.

The reason is the U.S. Senate’s devotion to a procedure called the imaginary filibuster. It has undercut the body’s ability to legislate, but senators seem unwilling to drop it.

The filibuster—the real one—has been with the Senate for 203 of the nation’s 233 years. Though Reid and others like to describe it as a tradition established by the founders, that’s nonsense. Originally, the founding Senate and House both could cut off debate with a simple majority vote, much like most governing bodies. But in 1806, the Senate—without, scholars say, fully realizing the implications for ending debate—dropped the procedure that made it possible to operate that way. Thereafter, senators could talk as long as they wanted to, and there was no way to stop them.

During World War I when appointed senators were giving way to popularly elected senators, and there was Progressive sentiment for more democratic processes, a rule was finally adopted under which filibusters could be ended with a two-thirds vote. All during the 1950s, 1960s and 1970s, Democratic Party leaders tried to reduce that threshold or do away with filibusters altogether. That sentiment is still strong at the Democratic grass roots around the nation, where the filibuster is identified with racism. In 1964, a Senate filibuster against the Civil Rights Act lasted for 57 working days, including six Saturdays. But Democratic congressional leaders have made their peace with the procedure, though they did succeed in reducing the threshold to three-fifths, which in today’s 100-member Senate is 60 votes.

A real filibuster can be dramatic. Senators who want to hold the floor have been known to strap small urinals to their legs. Cots may be brought in so senators can sleep near the hall.

But all that applies to actual filibusters. What is clogging up the Senate these days is threatened filibusters that don’t actually happen. This is the imaginary filibuster, also called the trivialized filibuster (by scholar Jean Edward Smith) and the phantom filibuster (by scholar David RePass).

In 1975, party leaders in the U.S. Senate adopted a new procedure to deal with filibusters. In order to keep the Senate floor clear for other business, if senators merely threatened to filibuster, the body would automatically impose a 60-vote limit on cutting off debate. No one would have to actually filibuster, and the Senate floor would be kept clear for other business. And bills with majority support would die. For the price of a threat, the votes needed to pass a bill could be raised from 50 to 60. We are not making this up.

It’s not clear why no one foresaw what would eventually happen, but soon the number of alleged “filibusters” was rising. Delighted senators found they had a new tool to stop legislation. With just a threat to filibuster, a senator could stop a bill cold even though the Senate supported it—and without having to actually filibuster. A single senator can unilaterally make it more difficult to enact legislation.

Science fiction lawmaking

Even during what racist Southern senators would consider the glory days of the filibuster, it was never used so frequently as to exceed a single digit number in any year. During the titanic struggle to break the 1964 Civil Rights Act filibuster, there was a total of one filibuster.

Today, as abuse of the 1975 system grows, the number of alleged filibusters each year is routinely in double digits—and in the last Congress the number rose to heights never seen before—three digits. Where once filibusters were limited to major pieces of legislation like a civil rights act, today ordinary bills like S. 1023, the Travel Promotion Act of 2009, must collect 60 votes to break an imaginary filibuster.

It’s a little like the “Taste of Armageddon” episode of Star Trek in which Capt. Kirk and the crew of the Enterprise go to a planet where war for centuries has been imaginary but the casualties real. In order to allow the society to continue functioning on other things, a long war was turned over to electronic strategy and tactics and played like a video game. Citizens are electronically designated as casualties and turn themselves in at execution chambers to be killed—all without the disruption to society that normally accompanies war.

The imaginary filibuster has produced nothing but disruption. It frustrates majority rule by putting power in the hands of the minority. When voters elected a Republican Senate, the Democrats were empowered to control the chamber on vote after vote. Majorities of 58 or 59 votes were blocked by 41 or 42. After the Democrats regained a majority, the minority GOP can now decide what gets out of the Senate. Democrats watered down health-care reform repeatedly until it was toothless to get Republican and conservative Democratic votes (and still didn’t get them).

“By the time of the Carter and Reagan administrations, the frequency of filibusters had increased to 20 per year,” according to Marshall University scholar Jean Edward Smith.

“It was during the Clinton years that the dam broke,” Smith wrote in 2009. “In the 103rd Congress (1993-1994), 32 filibusters were employed to kill a variety of presidential initiatives ranging from campaign finance reform to grazing fees on federal land. Between 1999 and 2007, the number of Senate filibusters varied between 20 and 37 per session, a bipartisan effort.”

The last column shows the number of cloture votes thus far this session. And there’s a long ways to go.

These were, remember, filibusters that didn’t actually happen. It is an indication of how well congressional leaders have spun this process that even Smith refers to filibusters, as though they actually happened, rather than filibuster threats. The same terminology afflicts news coverage.

Just during Harry Reid’s time as majority leader—January 2007 to now—144 votes have been needed to cut off filibusters that never happened. (Cloture is a vote to end debate). All this has made the Democratic grass roots under President Obama restive. They want the imaginary filibuster system ended, or at least that those who threaten filibusters be required to actually strap on the urinals, line up the cots and filibuster. During the stimulus debate, “make them filibuster” became a common cry among Democratic activists. With health care being held hostage by an imaginary filibuster, those cries have become louder. On Sept. 1, the number of hits for the phrase “make them filibuster” jumped from 109,000 to 111,000 on Google within 10 hours. It is now at 117,000.

The imaginary filibuster is a special problem for Democrats because it confirms the old charge of “Democrats can’t govern” (168,000 Google hits compared to 134,000 for “Republicans can’t govern”), a charge often made by Democratic entities like the New Republic magazine. And the Democrats have played their assigned role. After the 2008 election when it appeared the party had 58 votes in the Senate, they started trying to lower expectations of whether Democratic policies would actually be enacted by the Senate.

After election challenges and recounts were settled, and the Democrats achieved 60 votes, the pace of alibis increased instead of slackened. Now it was their own blue dogs who were the problem. The upshot, though, is that an overwhelming majority of Democrats in what they claim is the “greatest deliberative body in the world” cannot function as well as a city council by passing measures by majority vote. It is the Democrats who allow themselves to be stymied by a handful of blue dogs or a minority of Republicans when all they really needed to pass the stimulus or health care reform is 51 votes. Without the imaginary filibuster, the Democrats would have the votes necessary for their entire program—health care, climate change, etc.—without the blue dogs and Republicans. (The legislation extending jobless benefits and renewing and expanding an $8,000 tax credit for first-time home buyers needed three votes against imaginary filibusters before it passed the Senate.)

Professor Smith calls the imaginary filibuster the Senate’s “self-inflicted wound.” Columnist E.J. Dionne describes the Senate as “a procedural torture chamber. … The House is not the problem.” He notes the Senate this year has needed nearly 60 cloture motions and more than 30 roll call votes.

The imaginary filibuster isn’t even a Senate tradition. Not only did the founders not envision the imaginary type of filibuster, but it is a relatively recent innovation—34 years old.

Whose Senate?

Some scholars argue that the Constitution carefully limits the use of supermajorities, and filibusters on all kinds of random things aren’t included. “The phantom filibuster is clearly unconstitutional,” wrote Professor David RePass. “The Founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.”

Senators respond that the founders also allow the Senate to write its own rules. But when the News & Review tried to find the rule covering imaginary filibusters, it didn’t exist. According to the Senate Historical Office, the rules have never been changed to reflect the 1975 innovation: “The only rule that the Senate has regarding filibusters and cloture is Rule 22, which sets a 3/5ths vote for cutting off debate, which was adopted in 1975. The ‘two-track’ process is simply a leadership tactic and is not codified in the rules.”

In other words, the imaginary filibuster is not a Senate requirement. That makes returning the Senate to majority rule a minor matter. It can be ended simply by Senate Majority Leader Harry Reid announcing that he is discontinuing the tactic. Suddenly passing legislation will go back to being a matter of 51 votes. If he had done so at the start of this Congress, the Democratic program would already be enacted.

Others say Reid, if he does not want to act that directly, has another option: Require actual filibusters. Because conducting an actual filibuster is such a burdensome task, that will drop the number of filibusters back to the old level fast.

“It is up to Mr. Reid,” according to RePass. “He can do away with the supermajority requirement for virtually all significant measures and return majority rule to the Senate.”

When he first ran for the Senate, Reid said he was flatly opposed to filibusters.

“I’m personally against the filibuster in the Senate,” Reid said. “It’s crazy. One man can kill anything he wants to. One man can stop the process of government. That’s not right. I think the rules of Congress have to be changed.”

But Reid, as a state legislator, gambling regulator, and member of Congress, has never been a reformer—he tends to work with the governing mechanism he finds in place when he arrives. Once in Washington, he changed his mind about the filibuster, and by the time Senate Republicans during the Bush administration threatened to invoke a “nuclear option” to end filibusters against judgeship nominations, Reid was on board. Back in Nevada, rank- and-file Democrats did not understand why Reid didn’t jump at the chance to do away with all filibusters for good. Nor did some Washington observers, such as Kevin Drum of the Washington Monthly.

In his 2008 memoir, Reid actually wrote that doing away with the filibuster “would be the end of the United States Senate.” He was not alone in such hyperbole. Evangelical political leader James Dobson said the “future of democracy… actually depends on this struggle.” It’s useful to remember that what they were discussing was whether the Senate would begin conducting its business like nearly all governing bodies in democratic societies, from the Churchill County Mosquito Abatement District Board to the U.S. House of Representatives. And all of those governments function more efficiently than the United States Senate.

Some members of the Senate don’t like to talk about its internal workings, and some act as though such matters are not the public’s business. When asked about the imaginary filibuster, they get vague or avoid the issue. When we asked Reid’s spokesperson, Tom Brede, for a statement from the senator on whether he intended to require actual filibusters, we got a statement that kept the issue away from Reid and filibusters, attributable only to his spokesperson, not to the senator himself. It its entirety, the statement reads:

“Sen. Reid has earned a reputation for working with Democrats and Republicans alike to address the challenges facing Nevada and the nation. It’s too bad that some Republicans are attempting to block everything that comes their way, but that won’t stop Reid from working with anyone and everyone on behalf of Nevada. Because of his leadership, this has been the most productive congressional session since FDR. Because of the work we have done, equal pay for men and women is the law, Nevada’s sales tax deduction is permanent, and we have made investments in clean energy that are creating good-paying Nevada jobs and reducing our reliance on foreign oil.”

Even one of Reid’s pet bills—the Travel Promotion Act—had to survive a cloture vote.

Restoring majority rule

Not surprisingly, the House of Representatives also sometimes gets restless over the Senate’s indirection. In February, Politico reported that House Democratic leader Steny Hoyer—who had been hearing from his angry members—was upset with the stimulus package being hacked up at the behest of three GOP senators and pushed Speaker Nancy Pelosi to stop tolerating the Senate’s constant concessions. Politico quoted one House Democrat about the three Republican senators “dictating terms to 250” House Democrats.

A few days later, Reid’s office put out a memo claiming that there was no way for him to force the Republicans to actually filibuster. It said one Republican senator could be “forced to sit on the [Senate] floor to keep us from voting on that legislation for a finite period of time, according to existing rules, but he/she can’t be forced to keep talking for an indefinite period of time.”

But that is premised not on “existing rules” but on the oft-abused 1975 system of imaginary filibusters being kept in place as a political tactic, not a rule. Dropping that tactic and going back to majority rule and rare filibusters would solve that problem.

Some advocates of the filibuster say it protects the right to debate. Real filibusters prevent debate. As for imaginary filibusters, Reid last week complained that the GOP was refusing to debate on health care, meaning they would not support cloture on the imaginary filibuster against health insurance changes.

Last week, labor leader Richard Yeselson compared the Senate’s inability to function on major issues to California’s ballot initiative plague: “We are living through the Californiafication of America—a country in which the combination of a determined minority and a procedural supermajority legislative requirement makes it impossible to rationally address public policy challenges. And thus the Democratic president and his allies in Congress are evaluated on the basis of extreme compromise measures—supplicating to dispassionate Wise Men like Ben Nelson and Joe Lieberman, buying Olympia Snowe a vacation home, working bills through 76 committees and countless ‘procedural’ votes—rather than the substantive, policy achievements of bills that would merely require a simple majority to pass.”

At the moment, the issue before the Senate is health-insurance changes, which drifted for weeks as Reid searched for 60 votes. In a few weeks, it will be climate change. On and on it will go, majority rule being subverted by procedure.

The Senate has become a parliamentary Skull and Bones, worshipping pointless ritual instead of serving the public’s needs—and that is the real misfortune for the public, that its leaders are so immersed in procedure that they have forgotten that there are good people, hard-working people who are slipping backward, who look to the Senate to take their problems seriously, and the senators are playing sanity-challenged parliamentary games that eat up time and go nowhere.