After now having lived with the Obama administration for almost three years I have mixed feelings. On the one hand, as a gay person I rejoice at advancements towards attaining social justice for the gay community that this administration has facilitated but, on the other hand, as a hard left progressive I am pained by the President’s tendency toward a continuation of the warmongering policies of George W Bush and the unabated march toward creating a strict security state. The President seems to be every bit as captured by the industrial-military machine as most of the rest of Washington is. His administration has made no effort at all to rein in the fantastical pace of the Pentagon’s yearly budgetary increases and its gut busting excesses or to slow the expansion of state police powers. I am also quite nervous about the fact that someone who is so able to express thoughtful and reflective sentiments about the rule of law (and who also happens to be a constitutional scholar) finds it so easy to disregard concerns about the constitutionality of some of his actions. Even so I have no illusion whatsoever about how different things would be if another Republican were in control; l have not forgotten “Bomb, bomb, bomb…bomb, bomb Iran.”
But it is not the President’s performance I have been thinking about lately but rather it is that of the Congress, most specifically the Senate. President Obama has recently been haranguing Congress over their failure to put forward any jobs related legislation and rightly so. While Americans suffer through economic turmoil the Republican led House pisses away their time on ideological trivialities like defunding NPR or passing legislation to make sure that ACORN, an organization that doesn’t even exist anymore, won’t be awarded government contracts. And the Senate, despite the fact that it is under Democratic control, is stymied at every turn thanks to some arcane rules that it operates under. The great accomplishment of the 112th Congress, to date, has been to get the federal government’s credit worthiness downgraded.
The truth is that President Obama’s record of accomplishments heading into the 2012 election would be far better than what it actually is if not for the dysfunction in the Senate. This is not to say that the President’s accomplishments are few; we should not forget that he was able to get healthcare reform passed, something that had eluded Democrats for more than fifty years because powerful interests are at work. The average Joe probably doesn’t follow politics closely enough to remember or to realize just how incredibly productive and progressive Nancy Pelosi’s House was and is probably not aware that the failure to address economic issues came not from any failure on her part but as a result of the gridlock that occurred in the Senate at the hands of an obstinate minority. Unfortunately, most of the wrath from voters was directed at House members in the 2010 midterm election. While much of the success of Republicans can be directly attributed to the Supreme Court ruling in the “Citizens United” case (a case which allowed bucket loads of undisclosed slush fund cash to purchase elections for special interests), midterms are tricky things anyway in that the demographic that pays attention to them is already typically older and more conservative. With generalized anger driving the 2010 vote it is little wonder that the incumbent party suffered a substantial defeat but I think that now the public is finally awakening to the fact that its anger was misdirected and misplaced.
Though the House passed an incredible amount of good, progressive legislation nearly all of it died a slow, lingering death waiting on the Senate to take it up. The few bills that actually made it onto the Senate floor were usually blocked by the undemocratic rules and procedures that the Senate operates under. This dysfunction results from the use of various arcane rules and procedures that it imposes upon itself. There was a short time, after the midterm vote and before the start of the new session, during which those of us who are political junkies were encouraged by rumors going around about how the Senate might reform its rules but, alas, it came to naught. There was some, ever so slight, tinkering around the edges but nothing substantive changed. The most obstructive and infuriating of all Senate rules is the “filibuster”, a maneuver that allows just a single senator to halt proceedings. A “filibuster” means that a lone senator can put a “hold” on a pending matter or that a minority of senators can vote to leave open a debate that is before the Senate. This tactic traditionally required senators to actually remain on the floor of the Senate and continue to speak until they just couldn’t do it anymore. One of the most famous examples is a filibuster in 1964 that lasted for 75 hours when Southern Democrats attempted to block the Civil Rights Act. In past filibusters senators have even opened up phone books and read out names and addresses of constituents just to keep on talking.
But these days the mere threat of a filibuster (a “hold”) is usually enough to cause Senate leadership to withdraw a motion (e.g. a motion to proceed on a piece of legislation that has passed the House of Representatives or on consenting to a judicial nomination). The reason for this absurdity is that the adoption of the filibuster rule led to the birth of its bastard child, known as cloture. The cloture rule makes it impossible to end the filibuster unless 3/5ths of the senators are willing to vote to end the debate so that the Senate may then proceed to the actual vote on the matter. Cloture is the actual method of obstruction behind the filibuster as it is what is required to overcome it. If a cloture vote fails the pending matter remains open during which time each senator is afforded an opportunity to exercise his or her right to speak on the matter and, typically, the opposition is prepared to offer up endless amendments to legislation in order to bedevil the proceedings. If a filibuster is threatened or entered into it triggers the necessity for a cloture vote to occur and, because Senate leadership knows that the minority can defeat the measure or drag the process out for an interminable length of time by voting against cloture, controversial matters are usually just withdrawn rather than have the time of the Senate usurped at the expense of more pressing matters.
Any issue or spending bill or nomination is a potential victim of this undemocratic process. As a member of a minority group myself I am the first to defend a process that protects the rights of the minority from what is known as “the tyranny of the majority.” This term refers to the very real problem any minority group may face if the wishes or the opinions of the majority are unfair or biased against it for some reason. This problem is why it is necessary in a democracy to have a documented set of standards (like a constitution) that all parties must adhere to. The problem, as I see it, with the Senate filibuster and cloture rules is not the fact that a minority may slow or stop a process but rather that, in reality, a very small and fringe minority of ideologues are able to thwart the will of the vast majority. The reason this is true has to do with the very nature of the Senate.
Unlike the House, which is a direct representation body, the Senate is comprised of members who represent a state as a whole. Each state, regardless of how densely or sparsely populated, gets two senators. This compromise system was originally adopted because small states feared that their interests would always be sacrificed to the interests of the more densely populated states. This is a perfectly reasonable and understandable concern and the compromise of adopting a bicameral (two legislative body) system is a rational solution. Unfortunately the compromise means that the Senate is necessarily a much less democratic body, by its very nature, than the House. This fact solves the problem of giving a meaningful voice to small states but the rules that the Senate has imposed upon itself have made it into a pitifully dysfunctional body. The will of both the president and the House of Representatives is routinely thwarted because of this dysfunction and this means that so too is the will of the vast majority of voters. While I champion the idea of protecting the right of a minority to make its concerns known, and do not object to the concept behind the cloture rule, the sad fact is that the way it is currently imposed actually means that senators representing as little as 12% of the public routinely thwart the will of senators who represent the vast majority of the public.
By basing the cloture vote on the reaching of sixty votes out of a possible one hundred it means that a rule which is already undemocratic on its face is far less democratic even than it would seem. If it seems baffling to the public that, often, even the most moderate of considerations can’t gain traction in the Senate then they should know that the peculiar rules of the Senate are why. Particularly in the last few years we have seen that nearly every initiative put forth by the President or by Nancy Pelosi’s House (when the Democrats held the majority) were blocked in the Senate by the obstructionist minority. The most confounding aspect of this obstructionism is that it typically works to foil a public consensus. For instance, just a few days ago the Republican minority blocked a part of President Obama’s jobs bill that would have saved or created some 400,000 teacher and first responder jobs by the imposition of a .5% surtax (1/2 of one percent) on income above one million dollars. This amounts to an extra $500 on every $100,000 earned after the first million. It is an idea that is supported by three out of four Americans and still it was foiled by the obstructionists in the Senate because they are free to abuse the intent behind the Senate's rules of procedure.
I submit that there is a simple and perfectly reasonable solution that would correct this ridiculous predicament while still preserving the essential principle behind the cloture vote. I propose that the Senate adopt a cloture vote rule based not on the number of senators but rather on the percent of the population that each senator represents. This proposal would go far toward democratizing the Senate’s proceedings and would put a stop to the endless and needless obstruction that not just a minority can employ but that a group of senators representing only a sliver of a minority can employ. This would not be a difficult rule to implement as census data is readily available and the required calculation amounts only to performing elementary level math. Many U.S. senators represent the voice of just a fraction of 1% of the population and yet they wield power that is extravagantly disproportionate to the number of voters that placed them into that position. That sad reality accounts for the disdainful dysfunction of Congress, is mirrored by the consistently low regard that the public has for it and explains why a process that ought to yield democratically arrived at results which are reflective of public desire instead yields mostly perverse and inexplicable outcomes.
This idea is such a radical departure from the unreasonable method now in place that I suspect the cloture vote could be changed from requiring a 3/5ths majority to succeed to requiring even a 2/3rds majority to succeed and still work to make the Senate a more expedient body. The immediate objection to this suggestion will come, no doubt, from interests served by the status quo. I have no illusion about the likelihood that such a rule could actually be adopted since entrenched interests (including senators from small states who benefit from the present arrangement) would loudly object. The caterwauling would be unbearable. They would claim that this idea destroys the inherent protection afforded to small state interests by the cloture vote but that is a false and misleading claim as the cloture vote only pertains to the closing of a debate; senators from small states would continue to have the same disproportionate voice that was envisioned by the founders regarding the ultimate outcome of any matter since the actual vote would still permit each state to cast two votes. The actual reason behind objections will be that many senators would lose much of the aristocratic power they currently wield that they should never have acquired to begin with.
So, to summarize, here is a proposal that would go a long way toward solving the problem of dysfunction in Congress. It would help create a more democratic process while making it a more expedient one at the same time. Does this proposal have any chance of being enacted? I doubt it, it wouldn’t survive a filibuster!