Democratic Majority Rejects Democratic Rules

Last week the Senate, which still has a Democratic majority, abandoned their effort at rules reform. They elected to continue to allow the elected minority party to control the agenda and decide what is the Senate is allowed to vote on. This an astounding and pointless capitulation given the experienced of the last two years.

When the 111th congress began in 2009 the Republicans has been soundly rejected in a succession of elections and where down to only 40 senators. At that time, Mitch McConnell, the minority leader, made the deliberate decision that the best way for their small minority to exert influence would be to exploit the byzantine rules of that body and try to obstruct everything. They could not win votes, they had no interest in working towards solutions. So they would drag their feet, and gum up the works. Rather than trying to influence legislation they would try and make legislating itself impossible.

In this, they were remarkably successful. They insisted that each and every piece of legislation would require 60 votes. Then they held together and tried to pour enough poison into each process to to peel off a wavering Democrat or independent. Illness, absenteeism, Ted Kennedy's death, and the Massachusetts special election meant that often there where not 60 votes to be had.

Despite the largest senate majority in a generation, Obama’s appointments went unfilled. His judicial nominations were blocked. Health care reform was caught in endless delays, watered down, and stuffed with embarrassing kickbacks in pursuit of a 60th vote. The DISCLOSE act was killed, gutting campaign reform and opening the door to unlimited secret corporate cash. The DREAM act, which would have a provided a path to citizenship for immigrants willing to server their country, failed despite majority support. Legislation to address catastrophic climate change withered and died. When it came time to debate tax policy, Obama didn’t bother to invite Democratic senators into the room. Their 58 votes were meaningless in the face of the Republican’s 42.

Initially, the Democratic majority was taken by surprise the the extent of Republican obstruction. The filibuster and associated tactics had been used before. The most famous case was when the Democratic minority was blocking 9 of Bush’s judicial appointments. The Republicans  threatened a “nuclear option” of summoning Dick Cheny to force a rules change in the middle of the session. But in this session, the GOP took the relentless use of these tactics to a whole new level. The Democrats decided, not without some reason, that it would be inappropriate to try and change the rules in the middle of the health care debate. The focused on trying to round up a 60th vote to advance legislation. Sometimes this worked and sometimes it didn’t.

Time and again, crucial legislation passed in the House and languished in the Senate. Rather than blaming the Republicans for their obstruction, the public punished the Democrats for their dithering, apparent spinelessness, and failure to act. The Democrats where handed a massive electoral defeat. The minority learned that majority will take the blame for failing to address the nation’s problem. Politically motivated, relentless, unprincipled obstruction works.

By the end of the session it was obvious that the Senate rules where broken. It was so obvious that all 53 returning Democratic senators signed a petition supporting rules reform. A number of proposals were written. The most popular proposal maintained the filibuster. It just added the common sense requirement that a senator who wished to filibuster a piece of legislation would actually have to rise, and speak, and hold the floor in order to do so. This minor, obvious change would have had a sweeping effect and gone a long way towards restoring democracy in the Senate and in the U.S.

The start of the 112th congress was the perfect time to alter the rules. Only 51 votes were required to end the tyranny of the minority. The obligation was clear. Their opportunity had arrived. And they blew it. After years of collective abuse at that hands of the minority, Harry Reid was unable, or unwilling, to find 50 senators in favor of rules reform. Instead, Reid settled for handshake a with McConnell and a shared agreement that the obstruction would continue.

This is a great agreement for McConnell. It’s easy to be against majority rule while you’re in the minority. Someday the GOP will be in majority. When they are, they may decide that majority rule is a good idea after all. I hope they have the guts to see it through.

How to Restore American Democracy on January 3, 2011

Last Tuesday the Republicans in the Senate blocked passage of the DISCLOSE act. The vote “failed” with 57 votes in favor and 41 votes against.

The DISCLOSE act is a response the recent Supreme Court decision regarding campaign finance reform. The US Supreme Court ruled that corporations have right to spend unlimited amounts of money to influencing elections. The DISCLOSE act would require that these corporations do us citizens the kindness of identifying themselves. The corporations could still spend all the money they want to buy elections, they would just have to tell us who was doing it.

Apparently, this is something the GOP now opposes.

Voting against the measure was each and every Republican senator - including New Hampshire’s Senator Gregg. Including the New England “moderates” of Brown, Snowe, and Collins. And including senator John McCain, the author and one-time champion of the McCain-Feingold campaign finance law.

Adding to the absurdity is the fact that the bill is supported by 59 senators and opposed by only 41. Thanks to the insane rules of the US Senate, they need to 60 votes to break the filibuster. Why would the Republicans unite to filibuster this particular piece of legislation? That is what they do. They filibuster everything.

The 60 votes-to-break-filibuster business was a hot topic during the health care reform debate. During that debate is was suggested that the senate rules are not absurd, and that the filibuster is there to insure that the voice of the minority is heard on important topics. But that’s not how it works and that is not how the filibuster is used.

Republicans have employed the filibuster more than 105 times during this congress. They filibustered health care reform, financial regulation reform, economic stimulus, extending unemployment benefits, judicial nominations, federal appointments, cutting taxes for small businesses, and now, corporate campaign disclosure rules. They filibustered everything.

No matter what the topic, the Republicans are opposed. Not only will the vote against, but they are opposed to even letting the vote happen at all. During the Obama presidency use of the filibuster has jumped dramatically. Its use has gone from the extraordinary to the routine.

The perpetual filibuster votes requirement has, amidst turmoil and a vast array problems that require action, turned the legislative process to a slow slog. Important laws have been distorted, delayed, water-down, or killed by a super-majority requirement for each item of business.

This is not your father’s filibuster. They do not involve a Mr. Smithian stand or principle. They do not involve feats of endurance or endless inspirations speeches. The modern Senate filibuster is a parliamentary gimmick where the speech itself is not required and can not be compelled.

The GOP found a loophole in the rules. They broke the game.

It is frustrating to watch a duly-elected legislative majority try to confront our nations problems only to be thwarted by the minority. It is tragic to see our problems fester from abuse of protocol and cruel political calculation.

This can change.

The US Constitution makes clear that the Senate can establish its own procedures. At the start of a new congress, a simple majority can establish a new set of rules. The 112th Congress will be seated on January 3rd, 2011. On that day, they can break the filibuster once and for all.

Curtains for You 'Buster

Health care reform passed a major milestone on Saturday. After much pressure, arm twisting, and some outright bribery, the Senate voted 60-39 to allow themselves start debating health care reform. Isn't that great?

Of course, it's not great. It's pathetic.

We hear a lot about the need for 60 votes, and cloture, and filibuster threats. What happened to passing a vote via will of the majority? The talk of "60 votes" is so persistent you might think the filibuster is some sacred institution, enshrined in the Constitution. It's not. It's a gimmick. The filibuster and its ilk the last refuge of those philosophically committed to government inaction. It's time for them to go away.

The authors of the U.S. Constitution were deeply concerned about they tyranny of the majority, and the separation of powers. The system they devised, with three branches of government, and two legislative houses was designed to be inefficient. It was not designed to encourage paralysis. It was not designed to allow a minority to dictate terms to the majority. It was not the founders intent that any action in the Senate would require 60 votes.

The Constitution does specify times when a super-majority is required. If the Senate wants to convict the President of impeachment or remove one of their own members from office then more than 51 votes are required. There are other extreme circumstances where the Constitution requires more than a simple majority. Motions to start or end debate are not among them.

The Constitution does state that the legislative houses get to set their own rules. And that is where the trouble started. The idea that 3/5th of the members should agree to consider an issue or cease debate is predicated on a base level of civility and common sense. The Senate rules were conceived to insure sufficient debate on important issues. Now the rules are routinely abused to insure debate never takes place and that bills are never voted on at all.

Our legislative process is already deliberately inefficient. On top of that, we have entrenched interests willing to spend a lot of money to insure that status quo. We have a political minority that puts party ahead of principles, and considers any compromise to anathema. We have mobs and media outlets dedicated to spreading misinformation and discontent. We also have a lot of problems. Our country faces a multitude of challenges. We need to find a way forward if we're going to confront them. We need to end the gridlock.

Most of our problems aren't going away anytime soon. But there's a way to get rid of the unnecessary filibusters and friends. The Senate created these barriers for itself. It has the power, the right, and the obligation to take them away.