Polls show that frustration with Washington has never been higher — and who could argue? Most Americans believe the country is on the wrong track. Most lawmakers openly concede that nothing will get done before the November elections. The leaders of both parties are already trading threats over the possibility of a national debt default next year.
Barack Obama got elected by promising to change the tone in Washington, but clearly he’s failed, as George W. Bush did before him.
That should be a clue that the partisan animosity consuming the political system doesn’t originate in the White House. Although the media will fixate on the presidential campaign, the winner won’t really matter, at least not from the standpoint of making Washington work again. The problem is Congress, specifically the Senate, and to narrow it even further, the filibuster. When invoked — and it’s invoked often — the filibuster forces the majority party to come up with 60 votes, rather than the simple majority ordinarily required to pass legislation.
One obstacle to fixing this problem is that senators are loath to relinquish power. Another is that “filibuster reform” may be the most boring term in the English language, the process itself stupefyingly complex and all but certain to make listeners tune out. There will never be a national clamor for filibuster reform. Still, an easy way to grasp its importance, and why filibuster abuse has made Washington such an angry, dysfunctional place, is to imagine what the country would look like without it.
Let’s take only the Obama presidency. Had the filibuster not applied, the United States would have a market-based system to control carbon emissions, which would limit the damage from global warming, vitalize the clean technology sector, and challenge other large polluters like China and India to do the same. The new health care law would have a public option. Children of undocumented immigrants who served two years in the military or went to college could become US citizens. Women paid less than their male colleagues because of their gender would have broader legal recourse against their employers. Billionaires would not be able to manipulate the political system from behind a veil of anonymity.
Dozens of vacant judgeships would have been filled. The Federal Reserve would have operated with a full slate of governors, including Nobel Prize-winning economist Peter Diamond. Elizabeth Warren would be director of the Consumer Financial Protection Bureau, not a candidate for the Senate. And Mitt Romney would be paying a higher tax rate than the 13.9 percent he shelled out in 2010, since a provision to end the carried-interest tax break wouldn’t have died in the Senate. (By my math, that filibuster saved Romney $1,480,000 in 2010 alone, the difference between the 15 percent he paid on $7.4 million earned in carried interest and the top marginal rate of 35 percent.)
Each of these measures passed the House and received, or would have received, at least the 50 votes necessary to pass the Senate — but lacked the 60 votes to break a filibuster. (Nominations are handled — or not — solely by the Senate.) Since 2007, the GOP has filibustered legislation with majority support 78 times.
This no-filibuster fantasy world might strike conservative readers as less than ideal. But Republicans may win control of the Senate and White House this fall. Then they’ll be the frustrated ones.
An intransigent Democratic minority would block much of what Republicans are most eager to accomplish. For instance, they almost certainly couldn’t repeal the dreaded “Obamacare” (although the Supreme Court may strike it down next month). Nor would Romney’s vow to deregulate Wall Street by undoing the Dodd-Frank financial reforms stand a chance, anymore than the various plans to cut entitlements like Medicare, Medicaid, and food stamps. Extend the Bush tax cuts for the rich?
But the most powerful argument for reform is that Congress is less and less able to do the most basic work of governing. “The Senate has ceased to be a functioning organization,” says Gregory Kroger, a University of Miami political scientist and expert on the filibuster.
The last week has brought two pieces of good news. On Monday, Common Cause filed a lawsuit asserting that the filibuster was unconstitutional. Legal scholars differ on the strength of the case, but whatever its merits the lawsuit will draw attention to the problem.
The other, more significant, event is Senate Majority Leader Harry Reid’s apology on the Senate floor for not supporting the group of young Democratic senators who pushed for reform last year. Should Reid decide to act, the prospect of addressing the biggest problem plaguing Washington would become more than fantasy.
Joshua Green is national correspondent for Bloomberg Businessweek. Follow him on Twitter @JoshuaGreen.