THE BLOG
07/12/2013 03:05 pm ET Updated Sep 11, 2013

The Future of the Senate

Thursday afternoon an agonized Senate Majority Leader called the question: is the United States to be a serious 21st century democracy, or feeble 18th century aristocracy? Senate Harry Reid made a simple announcement; next week he would ask the Senate to vote, as the Constitution requires, on seven appointees submitted by President Obama: Gina McCarthy to be the Administrator of EPA, Richard Cordray as director of the Consumer Financial Protection Bureau, Thomas E. Perez as Secretary of Labor, and three nominees to fill vacancies on the National Labor Relations Board.

But he also specified that if the Republican minority in the Senate refuses even to vote on the president's nominations, he will ask the Senate to rule that they are entitled to an up or down vote, and cannot be filibustered.

"The place doesn't work," Mr. Reid said. "The American people know the dysfunction we have here. And all we're asking is let the president have his team."

Of such stuff is the fate of nations made. Poland, faced with a similar "noblesse prestige" veto in its parliament in the 18th century dithered for 40 years while Prussian and Russian bribes purchased the "liberum veto" from members of the Sejm and prevented Poland from equipping itself to resist its eventual partition among its neighbors in 1795.

It is true, as outraged Republicans protested, that the Senate has been subject to filibusters since very early in its history -- but it is not true that the filibuster was the mechanism envisaged by the drafters of the Constitution for protection of minority rights in the Senate. That protection was -- and is -- provided by giving each state, including small rural ones, the same two Senators as mega-states like Texas and California. Super majorities for routine matters were, in fact, explicitly rejected during the debates over the Constitution. The filibuster arose, by accident, decades after the Constitution was passed when the Senate inadvertently failed to include a provision for cutting off debate in its rules. Initially, this lapse was exploited only rarely, but when President Woodrow Wilson tried to prepare the United States militarily as the First World War broke out in Europe, his opponents repeatedly filibustered national preparedness measures. At that point Wilson used his presidential pulpit and tried to force the Senate to provide for cutting off debate, saying "A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible."

The Senate agreed to allow a cut off debate, but only if 2/3 of the Senate voted to do so. In 1919 the Senate cut off debate to permit a vote on the Treaty of Versailles -- even though the Senate then rejected the Treaty itself. But that precedent, that the Senate should not use extended debate to prevent a final vote, did not hold for long.

In 1975, after repeated use of the filibuster by Southern segregationists, the Senate reduced the number of votes needed, from 67 to 60 -- but inadvertently allowed Senators to prevent a vote on a bill without actually debating it on the floor. Abuse of this provision -- "the silent filibuster" first soared during Bill Clinton's first term when Minority Leader Bob Dole used to deny Clinton much of his legislative agenda. Abuse escalated again with Barack Obama's first term. But it has now reached unprecedented heights, with the Republican minority filibustering Presidential nominees with the explicit purpose of preventing the President from carrying out laws -- like the Consumer Protection Agency and the National Labor Relations Act -- they would like to repeal.

Reid must be anguished. The Majority Leader is a Senate traditionalist. He has resisted pressures from newer members of the Democratic majority in the Senate to reign in the filibuster, most recently in January when he refused to rewrite the Senate rules to restore the requirement of the "talking filibuster" so that public opinion would pressure Republicans not to abuse extended debate. Instead, he accepted a modest compromise on the number of times a bill could be filibustered and limiting debate on sub-cabinet appointees and district court judgeship's.

But the Republican extremists have forced him into a corner. Ironically, if the talking filibuster had been required in January, the more extreme revision of the rules Reid now proposes might well not have been needed -- Republican obstructionism would have become very visible and public pressure would probably have forced them to back down, especially over the Consumer Protection Bureau, the popular agency created to control consumer fraud by the banks. But for parliamentary reasons, the rule changes Reid failed to support in January are no longer available to him. A straight out assertion of the majoritarian principal on presidential appointments is his only option.

Minority Leader Mitch McConnell has called this a "power grab" but it's no such thing. The power grab was by the Republican minority. As Senator Jeff Merkeley said as the battled heated up, "They've essentially said they are going to disable the executive branch if a minority of the Senate disagrees with or dislikes the president the people elect."

(For the record, conservative opposition to majority rule is not confined to the Senate; over in the House Speaker Boehner has returned to paying obeisance to the "Hastert rule" by which Republicans, when in control of the House, only bring to the House floor legislation which has the support of "a majority of the majority." This means that even if a Majority of the House, for example, support comprehensive immigration reform, they won't get to pass it, because the Speaker will let a reactionary minority within the Republican caucus deny the House the right to vote.)

Reid does not appear to have all of the votes he needs to sustain his rules change yet; a handful of Democratic Senators are resisting the change, arguing that Democrats will need the power to obstruct Republican appointees at some future date. But this argument overlooks two critical facts. First, gridlock is not ideologically neutral; progressive forces advocating a strong national government need for the Senate to be able to act; reactionaries trying to weaken the role of government can tolerate inaction far more easily. And second, as the Republican reaction to the successful filibuster in Texas of anti-abortion legislation reveals lite, if the Republicans do regain the White House and Congress, they will change the Senate rules in a nano-second if needed to put extremist judges on the Supreme Court, or repeal environmental and consumer protection laws. Conservatives favor extended debate ONLY when they are in the minority, and were perfectly prepared during the Bush Administration to limit debate on judgeships if Democrats had not backed down and permitted the Senate to confirm Justices Roberts and Alito.

Finally, the filibuster is simply wrong. In a democracy, the routine business of government should lie in the hands of the majority. The history of how the filibuster has been used in American history shows it to be a tool heavily weighted towards reactionary minorities, short-sighted isolationists, and those who oppose a strong national government.

Much more than procedure is at stake next week. See the fate of Poland. (And if you are wondering who in this drama might be playing the role of the agents of the Prussian king and the Tsar who purchased the votes that gridlocked the Polish Sejm, just think about K Street, Citizens United and the flood of campaign bribery flowing through our political system today.)

A veteran leader in the environmental movement, Carl Pope spent the last 18 years of his career at the Sierra Club as CEO and chairman. He's now the principal advisor at Inside Straight Strategies, looking for the underlying economics that link sustainability and economic development. Mr. Pope is co-author -- along with Paul Rauber --of Strategic Ignorance: Why the Bush Administration Is Recklessly Destroying a Century of Environmental Progress, which the New York Review of Books called "a splendidly fierce book."