How do you solve a problem like the Senate?
One of the most ignominious moments in congressional history took place in the spring and early summer of 1964, during the Senate debate on the historic civil rights bill. Southern senators, led by Georgia’s Richard Russell, were filibustering the legislation, trying to talk their northern colleagues into submission. CBS correspondent Roger Mudd reported from Capitol Hill every night with a clock superimposed on the screen to mark how long it was taking the Senate to end the filibuster. On the day that the senators announced whether they supported or opposed cloture, which would end the filibuster, CBS displayed a chart with every senator’s name and vote.
The filibuster–it finally failed, of course, that June, and the bill became law–culminated an ongoing struggle that had taken place since the 1930s, in which Southerners repeatedly, and often successfully, relied on the procedure to defeat a range of civil-rights measures, ranging from anti-lynching proposals to measures to end public segregation.
To 1960s liberals, the Senate and its procedures embodied the pitfalls of the legislative process. The NAACP regularly ranked filibuster reform, along with ending lynching or segregation, among its top legislative goals. Minnesota Senator Hubert Humphrey called the filibuster an “undemocratic” and “evil” procedure. The filibuster, said Humphrey’s Minnesota colleague, Senator Walter Mondale, “has been used repeatedly by a small group of senators as a method for stopping action and avoiding compromise on measures which have been carefully considered and which were favored by a vast majority of members of this body–from all sections of the country and of all political philosophies–and by an overwhelming majority of the people of this nation.” Liberals of this earlier era decidedly did not share the enthusiasm for the body expressed by George Washington, who once explained to Thomas Jefferson that the purpose of the Senate was to “cool” the legislation that came out of the House of Representatives, in the same way a saucer cooled hot tea.
Liberals brought their fight for filibuster reform into the 1970s, trying to change the cloture rule so that a simple majority of the Senate could stop debate and move for a vote on the substance of legislation. The biggest victory came in 1975, when Mondale, Republican Senator James Pearson of Kansas, and a coalition of liberals persuaded their colleagues to lower the number of votes needed to end a filibuster from two-thirds (67) of the Senate to three-fifths (60). The compromise, which Vice President Nelson Rockefeller assisted through a series of favorable rulings on procedure, obtained the vote of conservative Democrats like Russell Long, as well as Republican Robert Dole. The final vote was 56 to 27.
Yet despite this reform, the problems with passing legislation through the Senate have become worse since the 1970s. The filibuster threat is so ingrained in Senate procedure that the majority often brings legislation to the floor only if it has a super-majority, rather than just a majority, of support, making major legislative initiatives nearly impossible. The fact is, the Senate as an institution is a source of obstructionism, anti-majoritarianism, and dysfunctional deliberation. Liberals should therefore consider making Senate reform a central part of their agenda and connect procedural issues to policy questions, as they had done in the 1960s, with the hope of allowing majorities greater power to vote their agenda up or down.
Expecting the worst from the Senate, President Barack Obama and the congressional Democratic leadership decided earlier this year to include the health care legislation within the reconciliation process, which prohibits a filibuster, if an agreement is not reached in October. Reconciliation would require only a majority vote, rather than 60 votes. Obama is not the first president to consider this route; others have used the reconciliation process to secure passage of their budgets, including Ronald Reagan in 1981 and George W. Bush 20 years later. But Obama’s decision to include a domestic initiative of this scale and scope within reconciliation is an ambitious use of this procedure.
While critics have attacked the president for making a Machiavellian move, the reality is that this is more an act of frustration and desperation from the White House, a sense that bold policy innovation is virtually impossible–for the left or the right–in the current legislative process, even with a united government. Regardless of how much support a president and his or her policy proposals command, it is almost impossible to imagine a period with as much legislative policymaking as we saw between the 1930s and 1970s–and yet, given the challenges facing this country, it’s vital that Congress again achieve that level of activity. The current situation is not good for representatives from any political perspective, and it is certainly not good for Congress as an institution.
The most striking characteristic of today’s Senate is that members regularly assume that 60 votes are required to pass almost any legislation. This is new–despite all the criticism of the Senate over the years, for much of the institution’s history simple majorities were sufficient to pass legislation. Filibusters have taken place since 1841, but they had rarely been used before the 1970s. In fact, the greatest burst of legislative productivity occurred between 1932 and 1972, when the older and more onerous filibuster rules were in place. According to the political scientist Sarah Binder, who co-wrote one of the best books on the filibuster, Politics or Principle?, there were only 23 recorded filibusters in the entire nineteenth century, compared with 35 just in the 102nd Congress (1991-1992). The 110th Senate (2007-2008) broke a record for the most cloture motions filed: 142.
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