The following was written during my internship in DC in June 2012, for the class focused on DC that I took while I was there. While citations were not required in the paper itself, I had a lot of help from Norm Ornstein and Thomas Mann's It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism. It is very enlightening reading and I highly recommend it (sadly they probably wrote a continuation of it in the years since, because it's only gotten worse). Some of the things I talked about, lines that hadn't been crossed yet, have since been crossed, in some very egregious ways. At least today (but hopefully not for much longer), Mitch McConnell still skulks about the Senate, poisoning the atmosphere.
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The United States Senate is widely regarded as the “world’s greatest deliberative body,” a place the founding fathers designed to cool the passions of the popularly elected House of Representatives. It was here that the greatest statesmen among us would spend more time debating the issues and through their far more advanced deliberative process come to a consensus that would please most everyone. Known as the more cordial and calm of the two houses of Congress, the Senate has been expected to seriously consider the most important issues, having been trusted with advising the president on nominations and ratifying treaties. Today it is clear that the myth of the Senate as a grand deliberative body is almost completely false. After years of complicated and contradictory rules and procedures, the Senate is now a barely functioning institution. Though the United States is supposedly the epitome of democracy, the Senate in practice is the most undemocratic institution in the country.
Contrary to the hallowed principle of majority rule, the Senate effectively imposes a supermajority rule on any legislative action that takes place in its chambers. National elections in the United States are decided by the plurality principle: the majority of voters will determine the victorious candidate. Decisions in the House of Representatives work the same way. Majority rule is America’s bread and butter, and it is what Americans expect when they think of legislative action, from their state houses to the halls of Congress. This is not how the Senate works in practice, however. A single senator can decide to stop all debate simply by threatening to use what is known as a hold or the more famous filibuster. When most people think of the filibuster (assuming they even know what it is), they probably think of Mr. Smith Goes to Washington, where one brave man stood up and gave a speech for hours, convincing his colleagues to stop for a moment and reconsider the action they were about to take. In years past this is precisely how the filibuster worked, but the filibuster today is a casual tool of obstruction without consequences for its user. Rather than give a speech for hours, a senator simply has to announce his intention to filibuster and debate ends. To end a filibuster, three-fifths of senators are required, and as the Senate is a body of one hundred people, this means sixty votes are required.
Holds work in much the same way as filibusters, except that their delaying effect is not as long-lasting and they are commonly used on procedural matters and nominees that must be confirmed by the Senate. In exchange for lifting their hold, senators typically demand concessions on bills or support for nominees they like. If senators attempt to push forward in spite of the hold, it can then transform into a full-fledged filibuster, which can force extended delays by restricting even how long senators have to respond to its use. To even begin stopping a filibuster with a cloture motion, senators must wait two days, and if they are successful in ending the filibuster, an additional thirty hours of “debate” must then take place before a final vote can occur. As no action is actually required to take place during these thirty hours, the time is essentially a mandatory wait that minority senators can choose to use for actual debate or just for killing time.
These tools were designed to protect the minority from the terrifying “tyranny of the majority,” and to ensure that passions cooled and legislators did not rush to judgment. When used, they force the entire legislative body to pay attention and can signal important moral objections or simply defend an overlooked interest from being run over by a fast-moving majority. These guiding principles and good intentions are no longer the motivation behind the use of these minority weapons. Senate Minority Leader Mitch McConnell has publicly stated that “the single most important thing [republicans] want to achieve is for President Obama to be a one-term president.” The party in the minority in the Senate has successfully prevented nearly every major piece of legislation proposed by the president and the Democratic Party. In recent years, the number of filibusters has skyrocketed; based on cloture filings, there were 139 filibusters in the 110th Congress, breaking the previous record of around 85; and slightly fewer in the 111th Congress, though still over one hundred.
A closer look reveals that many of these filibusters were easily defeated and the final votes were overwhelmingly in favor of the legislation or even unanimous. Take for example the 111th Congress’ bill to extend unemployment insurance, which passed 98-0, but suffered from a filibuster on the motion to proceed and another on the final passage of the bill. This means that filibusters were deployed even by senators who supported the bills in question; the delay was simply done to inconvenience the Senate and slow legislative progress in general. More importantly, the filibusters were not even supported by the minority party, as each filibuster was defeated 87-13 and 97-1 respectively. The total process took four weeks, including seven days of floor time. The effect of the Senate’s ineffectiveness has been obvious; it is a great part of why Congress had an approval rating in the single-digits in the last few months (even now it’s still at a meager 17%). In the 111th Congress, the Senate failed to vote on 420 bills passed by the House under Speaker Nancy Pelosi’s guidance, largely due to the filibusters mounted at every opportunity by republicans.
Defenders of the Senate will argue that the delays and institutional blocks impeding immediate progress are a good thing and intended by the founding fathers, but so much of what defines the Senate has been defined by the Senate itself, not the framers of the constitution. Granted, when the Senate was first designed, it was not intended to be a democratic institution; rather, it was the body of Congress that would represent the interests of the states, not the people living within them. Senators were appointed by state legislatures, not elected by the people. However, the Senate has changed a great deal since then. With the 17th amendment, the people directly elect their senators, and institutional norms have also changed. The original senators decided early on to require unanimous consent to proceed on any legislative action; the concept of the filibuster, and the means to shut it down, did not exist. When five senators banded together to halt all progress on a bill to prepare Americans for World War I by increasing spending on arms, the outrage that followed established the original rules for cloture, which allowed two-thirds of present voting senators to end a filibuster. This rule was again modified in the 1970s to allow three-fifths of all senators to be sufficient for cloture, which appears to be better than the previous rule but in practice actually makes filibusters harder to defeat. That second rule change undid decades of relatively responsible use of minority privileges, but it also illustrated a key fact: Senate rules are not permanent. Every new session of Congress begins with the Senate voting on the rules it will use for the next two years, meaning that the filibuster could easily be dropped at any time simply because the Senate decides to change the rule after a Congressional election.
Rather, if one wished to consider what the founders considered to be important for the Senate, he or she could observe that the only voting requirement in the constitution is that treaties require two-thirds of the Senate to approve. Aside from this, the constitution also established one of the most cherished checks the legislative branch has on the executive: the advise and consent rule that governs how the president nominates judges and executive branch officials. In today’s partisan climate, the president can only get cabinet secretaries and Supreme Court justices approved (and even this is becoming more difficult); on every other level, nominees are victimized by holds and filibusters. Tabling the discussion of nominees and allowing vacancies to continue for years is not advising the president on nominees nor is it allowing the Senate a chance to decide if it consents to the choice; instead, it is one man or woman stating opposition and the rest of the body being forced to accept it if that senator’s fellow partisans decide not to support a vote to continue debate. President Obama has only had 42.8% of his nominees confirmed, and his first term is nearly over. Previously the Senate had confirmed over 80% of every past president’s nominees.
For fear of the tyranny of the majority, the Senate suffers tyranny of the minority. These days the Senate is described as the place where legislation goes to die. Reports of Senate votes describe them as having failed 51-49 or 53-47 or some other similar number, because the vote that decides the fate of an issue is too often the vote for cloture, not the actual vote for passage. Votes fail in spite of a majority of senators in favor simply because of procedural rules designed by the Senate that are then abused by a few irresponsible senators. The Senate is slow, and was even designed to be slower than the House, but it is not deliberative. Deliberation suggests debate and discussion, not delay and the indefinite postponement of debate. The filibuster is a stalling tactic as it always has been, but it is no longer one that forces a senator to take a stand; it is now an extraordinary tool of great importance made ordinary and obstructive. Bills and progress are repeatedly thwarted because of an anonymous (at least as the general public is concerned) objector. When debate is stifled rather than allowed to take place and an individual or a minority of representatives can prevent the majority from doing its job, the result is not democracy. The greatest deliberative body in the world should at least deliberate if it is to be worthy of its title.
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The United States Senate is widely regarded as the “world’s greatest deliberative body,” a place the founding fathers designed to cool the passions of the popularly elected House of Representatives. It was here that the greatest statesmen among us would spend more time debating the issues and through their far more advanced deliberative process come to a consensus that would please most everyone. Known as the more cordial and calm of the two houses of Congress, the Senate has been expected to seriously consider the most important issues, having been trusted with advising the president on nominations and ratifying treaties. Today it is clear that the myth of the Senate as a grand deliberative body is almost completely false. After years of complicated and contradictory rules and procedures, the Senate is now a barely functioning institution. Though the United States is supposedly the epitome of democracy, the Senate in practice is the most undemocratic institution in the country.
Contrary to the hallowed principle of majority rule, the Senate effectively imposes a supermajority rule on any legislative action that takes place in its chambers. National elections in the United States are decided by the plurality principle: the majority of voters will determine the victorious candidate. Decisions in the House of Representatives work the same way. Majority rule is America’s bread and butter, and it is what Americans expect when they think of legislative action, from their state houses to the halls of Congress. This is not how the Senate works in practice, however. A single senator can decide to stop all debate simply by threatening to use what is known as a hold or the more famous filibuster. When most people think of the filibuster (assuming they even know what it is), they probably think of Mr. Smith Goes to Washington, where one brave man stood up and gave a speech for hours, convincing his colleagues to stop for a moment and reconsider the action they were about to take. In years past this is precisely how the filibuster worked, but the filibuster today is a casual tool of obstruction without consequences for its user. Rather than give a speech for hours, a senator simply has to announce his intention to filibuster and debate ends. To end a filibuster, three-fifths of senators are required, and as the Senate is a body of one hundred people, this means sixty votes are required.
Holds work in much the same way as filibusters, except that their delaying effect is not as long-lasting and they are commonly used on procedural matters and nominees that must be confirmed by the Senate. In exchange for lifting their hold, senators typically demand concessions on bills or support for nominees they like. If senators attempt to push forward in spite of the hold, it can then transform into a full-fledged filibuster, which can force extended delays by restricting even how long senators have to respond to its use. To even begin stopping a filibuster with a cloture motion, senators must wait two days, and if they are successful in ending the filibuster, an additional thirty hours of “debate” must then take place before a final vote can occur. As no action is actually required to take place during these thirty hours, the time is essentially a mandatory wait that minority senators can choose to use for actual debate or just for killing time.
These tools were designed to protect the minority from the terrifying “tyranny of the majority,” and to ensure that passions cooled and legislators did not rush to judgment. When used, they force the entire legislative body to pay attention and can signal important moral objections or simply defend an overlooked interest from being run over by a fast-moving majority. These guiding principles and good intentions are no longer the motivation behind the use of these minority weapons. Senate Minority Leader Mitch McConnell has publicly stated that “the single most important thing [republicans] want to achieve is for President Obama to be a one-term president.” The party in the minority in the Senate has successfully prevented nearly every major piece of legislation proposed by the president and the Democratic Party. In recent years, the number of filibusters has skyrocketed; based on cloture filings, there were 139 filibusters in the 110th Congress, breaking the previous record of around 85; and slightly fewer in the 111th Congress, though still over one hundred.
A closer look reveals that many of these filibusters were easily defeated and the final votes were overwhelmingly in favor of the legislation or even unanimous. Take for example the 111th Congress’ bill to extend unemployment insurance, which passed 98-0, but suffered from a filibuster on the motion to proceed and another on the final passage of the bill. This means that filibusters were deployed even by senators who supported the bills in question; the delay was simply done to inconvenience the Senate and slow legislative progress in general. More importantly, the filibusters were not even supported by the minority party, as each filibuster was defeated 87-13 and 97-1 respectively. The total process took four weeks, including seven days of floor time. The effect of the Senate’s ineffectiveness has been obvious; it is a great part of why Congress had an approval rating in the single-digits in the last few months (even now it’s still at a meager 17%). In the 111th Congress, the Senate failed to vote on 420 bills passed by the House under Speaker Nancy Pelosi’s guidance, largely due to the filibusters mounted at every opportunity by republicans.
Defenders of the Senate will argue that the delays and institutional blocks impeding immediate progress are a good thing and intended by the founding fathers, but so much of what defines the Senate has been defined by the Senate itself, not the framers of the constitution. Granted, when the Senate was first designed, it was not intended to be a democratic institution; rather, it was the body of Congress that would represent the interests of the states, not the people living within them. Senators were appointed by state legislatures, not elected by the people. However, the Senate has changed a great deal since then. With the 17th amendment, the people directly elect their senators, and institutional norms have also changed. The original senators decided early on to require unanimous consent to proceed on any legislative action; the concept of the filibuster, and the means to shut it down, did not exist. When five senators banded together to halt all progress on a bill to prepare Americans for World War I by increasing spending on arms, the outrage that followed established the original rules for cloture, which allowed two-thirds of present voting senators to end a filibuster. This rule was again modified in the 1970s to allow three-fifths of all senators to be sufficient for cloture, which appears to be better than the previous rule but in practice actually makes filibusters harder to defeat. That second rule change undid decades of relatively responsible use of minority privileges, but it also illustrated a key fact: Senate rules are not permanent. Every new session of Congress begins with the Senate voting on the rules it will use for the next two years, meaning that the filibuster could easily be dropped at any time simply because the Senate decides to change the rule after a Congressional election.
Rather, if one wished to consider what the founders considered to be important for the Senate, he or she could observe that the only voting requirement in the constitution is that treaties require two-thirds of the Senate to approve. Aside from this, the constitution also established one of the most cherished checks the legislative branch has on the executive: the advise and consent rule that governs how the president nominates judges and executive branch officials. In today’s partisan climate, the president can only get cabinet secretaries and Supreme Court justices approved (and even this is becoming more difficult); on every other level, nominees are victimized by holds and filibusters. Tabling the discussion of nominees and allowing vacancies to continue for years is not advising the president on nominees nor is it allowing the Senate a chance to decide if it consents to the choice; instead, it is one man or woman stating opposition and the rest of the body being forced to accept it if that senator’s fellow partisans decide not to support a vote to continue debate. President Obama has only had 42.8% of his nominees confirmed, and his first term is nearly over. Previously the Senate had confirmed over 80% of every past president’s nominees.
For fear of the tyranny of the majority, the Senate suffers tyranny of the minority. These days the Senate is described as the place where legislation goes to die. Reports of Senate votes describe them as having failed 51-49 or 53-47 or some other similar number, because the vote that decides the fate of an issue is too often the vote for cloture, not the actual vote for passage. Votes fail in spite of a majority of senators in favor simply because of procedural rules designed by the Senate that are then abused by a few irresponsible senators. The Senate is slow, and was even designed to be slower than the House, but it is not deliberative. Deliberation suggests debate and discussion, not delay and the indefinite postponement of debate. The filibuster is a stalling tactic as it always has been, but it is no longer one that forces a senator to take a stand; it is now an extraordinary tool of great importance made ordinary and obstructive. Bills and progress are repeatedly thwarted because of an anonymous (at least as the general public is concerned) objector. When debate is stifled rather than allowed to take place and an individual or a minority of representatives can prevent the majority from doing its job, the result is not democracy. The greatest deliberative body in the world should at least deliberate if it is to be worthy of its title.