Need an illustration of what ails the US Senate? Look no further than the struggle over extending unemployment insurance benefits.
The two parties have very different outlooks on the issue, but regardless of where one stands, the matter doesn’t rise to the level of significance it once took to trigger a filibuster.
In decades past, more forbearing senators would have dickered, debated, voted, and moved on. Yesterday evening, however, the issue was left in limbo after the Senate twice failed to achieve the 60 votes needed to end filibusters. But wait — didn’t we learn last week that enough Republicans had joined with the Senate majority to invoke cloture? Well, yes, but that wasn’t a vote to end debate on the measure. All it actually did was allow the legislation to come to the floor so debate could begin.
Which brings up a very good question.
“If the majority wants to debate a bill, why should they have to have a super-majority” to start? asks Senator Jeff Merkley, Democrat of Oregon.
Let’s go further: Given the relatively routine nature of the issue, why is it being filibustered at all? When I e-mailed that question to a spokesman for Minority Leader Mitch McConnell, he cited the rule that governs ending debate, as though to say: Because the Senate rules allow these tactics. Queried further, McConnell’s spokesman noted that the Democrats weren’t allowing Republicans to offer any amendments. (In the past, Democrats have charged that Republicans are less interested in legislating than in offering proposals designed to embarrass the majority.)
That was true — at least until the first filibuster-ending coalition started to unravel because of GOP defections. Indeed, his preliminary no-amendments determination earned Senate majority leader Harry Reid a New York Times reference to his “brutish” style and “iron-fisted” control. But yesterday, a proposed deal that would have allowed GOP amendments, followed by a simple up-or-down vote on the bill, came to nothing. And so, after the two failed attempts to end filibusters, the unemployment insurance extension has been left unresolved.
Last Wednesday, in the early sparring, McConnell had gone to the floor to lament the sorry state of the Senate. Its time-honored role of creating broad consensus about major legislation was too important to sacrifice to raw partisanship, he said.
It was an interesting speech, but one that suffered from two failings, one philosophical, the other personal.
According to McConnell’s notion of consensus, to pass the Senate something must be acceptable to 60 senators, and not just a simple majority. Why? Such a supermajority certainly isn’t anything the founders intended.
Second, as minority leader, McConnell has made delay and obstruction in the pursuit of partisan advantage a veritable dark art. Under McConnell, President Obama has had more of his nominees filibustered than all other presidents combined. McConnell also ushered in the era where virtually anything of any consequence must pass the filibuster-ending threshold of 60 votes. In other words, it was impossible to credit the sincerity of the message given the history of the messenger.
Though neither side is blameless, the single biggest problem the Senate suffers has been the wholesale abuse of the filibuster by McConnell and the Republican caucus.
That’s why the Democrats were justified in changing the rules to eliminate the filibustering of most presidential nominations.
But that reform is only part of the answer. More must be done.
Merkley and a couple of colleagues have proposed several reforms designed, as he puts it, to return the filibuster to its former status “as a rarely used tool.”
One would require filibusterers to stand and talk on the Senate floor. That should be joined with a guarantee of the minority’s right to offer some amendments, no matter how much those amendments may rankle Senate leadership. When the filibustering forces could no longer muster members to speak, debate would end and the issue would proceed to a majority vote.
A stand-and-palaver requirement would make filibustering actual work, and thus reduce its use. But the filibuster could still be a formidable weapon when employed by a determined minority. And as they became more public but less frequent, filibusters would also grow more newsworthy.
Who knows, it’s even possible that, with the tools of obstruction less handy, the emphasis might begin to shift toward compromise.
But even if today’s rancor and polarization didn’t dim, the Senate majority, no matter who held it, would still have a way forward.