The question has been asked before, but it’s never had more relevance than right now: What, precisely, is the point of the United States Senate? On Monday, November 30, the upper chamber began its historic debate on the reformation of the American health-care system. The next day, the senior senator from New Hampshire, Judd Gregg, dispatched a letter to his Republican colleagues advising them on how they could derail the proceedings. Not that Gregg put it quite that bluntly, mind you. Instead, he employed the lofty language of high purpose. “We are at an important crossroads both for the economy and for the health care system,” Gregg wrote. “We, the minority party, must use the tools we have under Senate rules to insist on a full, complete, and fully informed debate.”
Appended to Gregg’s letter were two pages laying out the tools to which the senator was referring: an array of parliamentary maneuvers, from “hard quorum calls” to “motions to recommit” to “offer[ing] an unlimited number of amendments—germane or non-germane—on any subject.” As Gregg solemnly pointed out, all these gambits are among the “rights” possessed by the opposition in the Senate. But make no mistake, their cumulative effect would be nothing more or less than to bring the legislative process to a grinding halt.
Nothing that extreme occurred last week, but what did take place was ominous enough. Thanks to Republican intransigence, it took four days to vote on the first two amendments offered for consideration. Equally disconcerting, on the Democratic side of the aisle, compromises are being piled on top of compromises on the public option, in the service of holding on to the clutch of moderate senators necessary to get to the magic 60 votes—compromises that might yield something worse than no public option at all, and yet still not win over Joe Lieberman, whose “matter of conscience” pledge to filibuster a final bill containing any public option hangs like a sword over the entire enterprise.
It’s still early days in the Senate debate, of course, and Harry Reid and his cohorts might still rise to the occasion. A bill might pass. It could even be decent. Who knows?
But the alarming possibility remains that the self-styled “world’s great deliberative body” might yet wind up deliberating health-care reform to death. And even if it doesn’t, the attempt to push it through has revealed something important about the Senate, especially when the Democrats are in power: a degree of dysfunction that makes every other institution in Washington look positively healthy and that, as much as any miscue by the White House team, has imperiled Barack Obama’s presidency.
The absurdity of the Senate revolves primarily around the filibuster, an extraconstitutional (possibly unconstitutional) mechanism that has gradually morphed from a rare occurrence to a commonplace threat, creating a de facto 60-vote supermajority requirement for virtually every piece of major legislation, and in the process routinely and systematically trampling majority rule. Throw in the proliferation of anonymous “holds” on presidential appointments, which are effectively a one-person filibuster, and the congenital pomposity of the upper chamber, and you have a legislative body at once far less effective than it could be and far more obnoxious than it should be.
Banging on about all this used to be a lonely business. But as the 60-vote threshold has grown more pervasive and obviously deleterious, some of the brightest young things in the progressive blogosphere—notably Ezra Klein and Matthew Yglesias—have become loud champions of procedural reform. And as the consequences for Obama in particular have become apparent, some actual non-journalistic activists have cottoned to the cause. “If a popular, shrewd president coupled with a Congress with a strong majority in both houses held by the president’s party can’t get its program passed—no matter which party we’re talking about—something is structurally wrong with the system,” says one organized-labor player. “If FDR had to deal with the ordinary use of the filibuster on every piece of Senate business, he would never have enacted Social Security, the NLRA, the SEC, and all of the other key pieces of the New Deal (or, at best, most of them would have been badly watered down), no matter how tough and eloquent he was.”
Most of the arguments against abolishing the filibuster are rooted in the historical misconception that the maneuver was part of the Framers’ vision. (In fact, it was a creation of the Senate and has been altered several times in its history.) But the truth is that, for all the sense that getting rid of it would make, both substantively and politically, the likelihood of its disappearance is vanishingly small. Why? Because, at bottom, senators like the filibuster. It comforts them, reassures them that they’ll still be relevant even when they’ve been relegated to the minority. It guarantees them, in other words, that they will never have to confront a situation that they fear more than death itself: being ignored.
If deep-sixing the filibuster is off the table, the next best alternative would be for the majority to force those who threaten a filibuster to actually, you know, filibuster. To make them hold the Senate floor, talking until they drop. To break out the cots, just like in the old days, creating a scene straight out of Mr. Smith Goes to Washington. Imagine the effect on Lieberman or Ben Nelson if Harry Reid were to call their bluff on health care.
But although people close to Reid have occasionally made noises about taking this tack, no one seriously expects it to happen. And that points to another problem with the current Senate: the weakness of the leader. Around Washington, the perception of Reid is almost uniformly that he’s a pale shadow even of recent former occupants of his post, such as Tom Daschle and George Mitchell—let alone the giants of yore, from Mike Mansfield to LBJ.
Whatever Reid’s merits and demerits, what’s indisputable is that his control over his caucus is less commanding than that exerted by Nancy Pelosi over hers in the House; or, more to the point, than that of almost any Republican Senate majority leader of recent vintage over theirs. Indeed, maybe the most persuasive counterclaim to the view that the supermajority is the problem in the Senate is that the GOP has rarely been as troubled by it as Democrats are now. In the age of George W. Bush, for example, Republican discipline was so staunch, and the party’s movements so firmly in lockstep, that the filibuster rarely posed the kind of problem that Obama and his party have encountered all this past year. The reason is that the Democratic Party is a much more heterodox beast than the GOP. There are obvious upsides to this diversity, especially in national elections. But the consequence is that Obama has a much trickier hand to play in Congress than Bush did.
The supermajority requirement entailed by the filibuster, the weakness of Reid, the ideological diversity of the caucus: All would have conspired against any new Democratic president, even one with a much less urgent or sweeping program than Obama. The trouble is that, in all likelihood, the picture in the Senate is destined to grow only dimmer for Obama. Among the savviest Democratic senators I’ve spoken to of late, the consistent refrain is that the party is staring down the barrel of a three- to five-seat loss in the midterm elections next year. And, if that comes to pass, it will have profound implications for what Obama can achieve in the second half of his first term. “Think about how hard it’s been for them with 60 seats,” says a centrist senator. “Now think about what it’s going to be like with just 55 or 56. Not pretty.”
Which brings us back to health care. Throughout the epic push to pass reform, Obama has never once uttered a peep of complaint about the procedural lunacies of the Senate. Yglesias speculates that as an ex-senator, he may have “personally bought into the bizarre self-justifying myths that circulate” in the upper chamber. But that is wrong; Obama was never much enamored of the place, even when he was there.
More accurate, I suspect, is that Obama’s aversion to criticizing the Senate’s bizarro byways is part and parcel of the overarching strategy of congressional deference that has defined his first year. One of the great sacrifices of that approach has been the loss of the outsider status he brought with him to the White House. If health care passes, Obama might well judge that sacrifice to have been worth it. If it fails, however, he may rue the decision to make common cause with the inmates of an asylum that he fled at the earliest opportunity.