U.S. Senate = dysfunction

Sarah was a regular volunteer for the Democratic Party after she moved to Nevada away 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.

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’ nomination to the U.S. Supreme Court was approved on a 52-48 vote that same year. Two years later, President Bill 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.

For example: In the second year of George W. Bush’s administration, 56 of 100 senators voted for an economic stimulus package, which therefore failed to pass. And 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. This procedure 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 of Representatives 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 grassroots 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 wanted to hold the floor were known to strap small urinals to their legs. Cots were often brought in so senators could 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.

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.

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 Senate Bill 1023, the Travel Promotion Act of 2009, must collect 60 votes to break an imaginary filibuster.

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. As a result, Democrats watered down health-care reform repeatedly until it was toothless to get Republican and conservative Democratic votes (and still didn’t get them).

“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.”

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 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 grassroots under President Barack 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.

The imaginary filibuster is a special problem for Democrats because it confirms the old charge of “Democrats can’t govern,” 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.

Whose Senate?

“The phantom filibuster is clearly unconstitutional,” wrote professor David RePass. “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 SN&R 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 alone would 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 onboard.

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.

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 California-fication 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 … 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.