So the US Senate is the world’s most dysfunctional political body. On this most Americans will agree. Republicans filibuster just about every piece of legislation, meaning a supermajority of 60 votes is necessary to close debate and pass legislation. Republicans claim this is payback for Democratic filibustering of Republican appointees. Without a doubt if the Republicans take control of the Senate again the Democrats will filibuster everything the Republicans propose. And if the last two cases are any guide, the American electorate will be less bothered by the “obstruction” of the minority than by the “incompetence” of the majority.
The Senate is, for all intents and purposes, a non-functioning pillar of one of the three branches of government. The filibuster, once used in exceptional cases (including unseemly opposition to the civil rights bills), is now a routine procedure such that the media reports the 60 vote threshold as if it were part of the Constitution. And with the current GOP using the filibuster far more frequently than ever before it seems that the problem will only get worse – no matter who is in charge. As if “budget reconciliation” was some sort “cramming through legislation” on – gasp – majority rule as conducted through the entire history of the US Senate until now.
Very few people want to get rid of the filibuster outright. It is still necessary in the case of egregious abuses of power by the majority. Evan Bayh suggested lowering the cloture requirement to 55 votes from the current 60.
But that still means the minority can prevent a majority vote at will. The problem is not necessarily the 60 v. 55 threshold. The problem is that it is used as a routine course of business.
So what’s to do?
Well, I think the National Football League of all institutions has given us a model for how to fix this problem. I’m thinking of instant replay. Remember when the NFL first introduced instant replay? Everybody complained that it took too long and ruined the rhythm of the game. Then the NFL got rid of instant replay and a series of atrocious officiating calls started affecting the outcome of some key games. Clearly we wanted instant replay, but not the invidious and game-destroying system of the past.
In came the coach’s challenge. Under this system coaches have a set number of instant replay challenges. If they fail they lose their challenge. If they fail twice they have no more challenges left.
Now the two sides must make sure that they have been actually – or very likely – wronged by the officiating crew before resorting to the game-delaying tactic of instant replay.
So what can the Senate learn from this?
The filibuster is often defended as the only mechanism necessary to prevent an abuse of power by the majority. But with the modern no-talking filibuster (unlike the old school filibusters where Senators had to actually debate interminably), it has become a consequence-free and irresponsible mechanism to thwart the duly elected majority in the Senate. Elections do have consequences and the majority should be able to pass most of its legislation as long as an actual majority exists.
So here is my proposal. Agree before the session to a set number of filibusters for the two-year term. Say, 20 times, which was the average for many years until very recently. The minority party may use the filibuster 20 times for whatever reason it deems appropriate – nominations, legislation, resolutions, etc. Of course, the minority still must work to prevent the 60 votes for cloture from occurring so even the 20 filibusters are not guaranteed. Still, it would ensure that the minority party only filibuster the “big stuff” and/or the most controversial legislation. The minority would think twice about using up all of its filibusters before the majority pushed an even more offensive piece of legislation through.
One objection to this would be that the majority could just cram 20 pieces of extreme legislation through just to get the minority to throw away its 20 filibusters. And then it would follow up with legislation it really wanted to pass. But that assumes that minority can’t call the majority’s bluff, let the Senate have an up-or-down vote, and watch the majority vote against its own stunt proposal.
Another objection is that the majority is agenda is really just so radical overall that the 20 filibusters is not enough. But the ultimate arbiter of this is the electorate, which put the majority in power in the first place. Elections have consequences. And if the people really do detest what the majority does they can vote them out the next election.
I’d love to hear other thoughts on this because I honestly see no way that the US Senate will function again. The partisan polarization is so poisonous right now that each side will perpetually gum up the works and nothing will ever get done. And let’s not fool ourselves with the belief that more moderate legislation will ultimately come out of the current filibuster system. A small handful of bipartisan moderates will always agree to something. But they’ll never get a majority – not to mention a supermajority – to come on board with them. The political climate of late has proven that the surest way to win an election is to fire up your base and divide your opponents. And the way to do that is to obstruct and then mock the majority for its inability to pass anything. This is the logic of the guerrilla warrior – destroy all institutions of governance so the people lose faith in the ruling power’s ability to govern – and then take power. It’s certainly no way to run a republic.
The framers of the Constitution wanted checks and balances. But they did not want a Polish-style parliament where the smallest of minorities could derail the majority. It’s time to fix the Senate filibuster so the people’s house can represent the people again.