03/23/2010 05:12 am ET Updated May 25, 2011

The Other Half of the Picture

San Francisco -- I've written a couple of posts in the past week that analyze the first year of the Obama presidency from the perspective of executive leadership -- and I've given the president very high marks indeed.

But presidents have multiple roles -- including providing political leadership for their party and advancing a legislative program in Congress. And here President Obama -- admittedly confronted with a stunning array of challenges -- has yet to find his footing, as yesterday's stinging rebuff in Massachusetts documented.

The economic stimulus bill was, from an environmental perspective, a huge advance, but the Congress has relatively little to show for its efforts since then, and legislation for comprehensive energy, green jobs, and climate change is terribly bogged down in the Senate after being disturbingly compromised in the House. What's going on? Some believe the administration has done the best it can in the face of the economic crisis and the unrelenting obstructionism of the Republicans. Others argue that if Obama would stand up as a populist and rally his base he could sweep his opponents on Capitol Hill aside.

I'm in neither of those camps. I think we face a fundamental, almost constitutional political crisis, one that has been fomenting since 1992. It has now erupted, and President Obama has failed to confront it, although there are signs that he may now at least recognize its nature.

I've written often on what I call "Polish rules" (after the disastrous "Liberum veto" of the 17-century Polish parliament). It means giving veto power to a small minority, which has increasingly been the case in the U.S. Senate. What's new, though, is that the "instant" filibuster had been combined with a new system in which the Republicans operate in lockstep like a parliamentary party -- ideologically coherent and disciplined. Meanwhile, the Democrats, especially in the Senate, continue to operate in the tradition of an ideologically diverse collection of local and regional perspectives.

If not for this toxic combination of minority veto and parliamentary discipline, then not only a healthcare bill but also energy and climate legislation, banking reform, and a second stimulus package would almost certainly have been signed in beaming Rose Garden ceremonies by now, and Barack Obama would be the most successful president, legislatively, since Richard Nixon or perhaps even Lyndon Johnson. I suspect that's exactly what Chief of Staff Rahm Emanuel, a creature of the House, envisioned. In a House-centric context, passing a few pieces of comprehensive, umbrella legislative set pieces makes sense. The majority party, by succeeding, entices enough members of the minority party to create big victories and garner public credit. If the minority refuses to play, it gets rolled over and becomes the party of "no," which in an economic crisis is an untenable political strategy.

But the toxic combination exists, was largely predictable, and must be confronted and overcome. I said this was an "almost constitutional" crisis. Thomas Geoghegan, in an op-ed entitled "Mr. Smith Rewrites the Constitution," argues that the crisis is, in fact, constitutional, because the filibuster itself violates the majoritarian principles laid out in the Constitution and limned in the Federalist Papers. Given that rules limiting debate in the Senate were never adopted during the years immediately after the ratification (a time when Founders like James Madison served in the Congress), I think that argument stretches its case. (However, if the Democrats were to attempt to rewrite the Senate rules at the beginning of the next session, and if the Republicans then objected that the Senate was a "continuing body" and that therefore 60 votes are required to overturn the 60-vote requirement, then I think a true constitutional crisis might arrive.)

I have no doubt at all, though, that Madison would view today's Republican congressional party as an aberration and a failure of his carefully constructed system of checks and balances. Madison -- and the other Founders -- hated parliamentary politics because it deprived voters of the "best judgment" of their elected representatives and too easily allowed the majority to ride roughshod over the minority. How much more loathsome would they find today's Senate, in which a parliamentary minority rides roughshod over the majority!

If the majority party wants to restore majority rule, of course, it can do so -- with or without 60 votes. In that sense yesterday's Massachusetts outcome matters less than the media pretends, because 60 was never a magic number of the Democrats, as the last few months have revealed. The Democrats are not a parliamentary party, and only a parliamentary party can count on every member's vote as a matter of course. Under the current Senate rules, anything that involves the budget can be enacted by a simple 51-vote majority, and he who pays the piper calls the tune -- the Democrats can govern if they unite to do so -- even if they have only 55 votes.

But first it is vital that the public legitimacy of "Polish rules" be challenged, and that is beginning to happen. Geoghegan's op-ed was only one salvo -- a far more significant straw in the wind was Vice-President Biden's fiery attack on the supermajority: "As long as I have served ... I've never seen, as my uncle once said, the constitution stood on its head as they've done. This is the first time every single solitary decision has required 60 senators," Biden said at a fund-raising event on Sunday. "No democracy has survived needing a supermajority."

Immediately, the Right attacked Biden as a hypocrite for having defended the filibuster when the Democrats were in the minority during the Bush administration.  And it's true that the Democrats (and environmentalists) used the tactic during the Bush years. But here's the difference: They never used it in the unified parliamentary fashion like today's Republicans. The Senate rules themselves aren't creating the crisis -- it is the combination of the rules with a one-sided parliamentary culture among Republicans in the Senate.

So President Obama must confront not only the rules but also the culture that has empowered them. He needs to remind the American people that we elect senators to cast votes and to make laws -- not to debate procedure and then refuse to vote. The fact that the Senate is, time and again, forced to create unwieldy, omnibus legislation because, under the current rules, there is no floor time to cast votes on the merits of individual programs is simply one aspect of this crisis.

If President Obama wants to regain the upper hand in making his case to the American people, he has to be able to force the Senate to vote -- up or down -- on his proposals. That's his, and our, biggest challenge -- not whether his party still has 60 votes.