Our Broken Senate
From the March/April 2008 Issue
The expanded use of formal rules on Capitol Hill is unprecedented and is bringing government to its knees.
The slaughter last April of 32 people at Virginia Tech University by a mentally disturbed student using a variety of guns he had purchased brought about an unusual, quick consensus in the political arena: guns should not be in the hands of people who are mentally ill.
Representative Carolyn McCarthy (D-NY), whose husband was shot and killed on a commuter train by a deranged individual, quickly drafted a bill to provide grants to states to put more information into the National Instant Criminal Background Check System of those individuals with criminal backgrounds and found by courts to pose a danger because of mental illness. The National Rifle Association endorsed the bill, as did the Brady Campaign to Prevent Gun Violence. It passed the House unanimously in June, and seemed to be cruising toward enactment—a rare moment of cooperation not just between gun-oriented groups but across party lines in Congress.
Then came Senator Tom Coburn (R) of Oklahoma. Coburn put a hold on the bill by objecting to a unanimous consent agreement to bring it up in the Senate. For months after its passage by the House, the legislation remained in limbo until finally limping to enactment at the end of the year—not a shining example of how government can work but instead a casualty of the way the Senate operates.
Ah, the U.S. Senate—the world’s greatest deliberative body. The chamber designed to be, as George Washington famously described it to Thomas Jefferson, “the saucer into which we pour legislation to cool” the hot tea from the cup of the House of Representatives. It is a body set up to make it difficult to enact laws, with a tradition of unlimited debate and a deference to the intense feelings of the minority over the more casual will of the majority.
As George Washington knew from the get-go, the slow pace and individualist nature of the Senate would drive the more action-oriented House of Representatives batty. And it has, regularly and consistently. One of the most battle-tested anecdotes, which I first heard in the 1970s from former Representative Al Swift (D-WA), is about the freshman House member who refers to a member of the other party as “the enemy.” A more senior colleague says, “No, he is just a part of the opposition. The Senate is the enemy.”
The Senate has taken the term ‘deliberative’ to a new level, slowing not just contentious legislation but also bills that have overwhelming support.
Soon after the stunning 1994 election in which Republicans swept into majorities in both houses and ushered in what became known as the Gingrich Revolution, I wrote the following in my Roll Call column:
“Forget the relationship between Speaker Newt Gingrich (GA) and President Clinton. The most interesting relationship in Washington for the next two years will be that between Speaker Gingrich and Senate Majority Leader Bob Dole (KS)…. Gingrich has a vision, an agenda, and a timetable. His risk-taking, combative, and radical approach worked, and has generated a large group of Gingrich progeny in the House—combative, confrontational, sharply ideological conservatives in a hurry.
“The Senate is very different. When an ebullient Gingrich was outlining his blitzkrieg approach to governance the day after the election, Dole’s reaction was more along the lines of, ‘Been there. Done that. Slow down.’
“The fact is that the Senate remains an institution of 100 individualists, all prima donnas, all with their own independent power bases. Filibusters, holds, and threats of filibusters are a way of life in the Senate.... [It] simply doesn’t provide any hope of regular 51-vote majorities for a tough, pure, and hard-line conservative policy approach….
“In many ways, the frustrations of modern governance in Washington—the arrogance, independence, parochialism—could be called ‘The Curse of the Senate.’ The curse has now been transferred from Speaker Foley and the Democrats to Speaker Gingrich and the Republicans. We’ll see if Newt has any better antidote.”
He didn’t. Newt saw nearly all his initiatives, including much of the Contract with America, disappear in the Senate Bermuda Triangle. Gingrich’s problems with Dole and his Senate were both predictable and par for the course. But the Senate today is showing signs of getting even more difficult to deal with. The Senate has taken the term “deliberative” to a new level, slowing not just contentious legislation but also bills that have overwhelming support.
The Virginia Tech bill is a dramatic example, but it is far from the only one. A bill to require senators to file their campaign finance reports electronically—something done for years by members of the House, presidential candidates, and nearly every legislative body out there—has been the victim of revolving holds for months on end. A widely supported ethics and lobbying reform bill was pushed back several times and nearly derailed by a hold placed by Senator Jim DeMint (RSC). A bill to repeal President Bush’s executive order allowing presidents to shield their papers from public view for decades after they leave office has been held up by Senator Jim Bunning (R-KY)—who stepped in after a months-long hold on the bill by Coburn was finally lifted in September.
The Senate has taken the term ‘deliberative’ to a new level, slowing not just contentious legislation but also bills that have overwhelming support.
To be sure, Coburn and DeMint do not fundamentally represent a new kind of lawmaker. The role of skunk at the garden party is time-honored, with the title carried over the years by both Democrats and Republicans. James Allen (D) of Alabama, Jesse Helms (R) of North Carolina, and Howard Metzenbaum (D) of Ohio all were proud to be the skunks at one point or another over the past 30 years.
So what is different now? For one thing, everybody is an obstructionist in today’s Senate, thanks to the dramatically expanded and different role of the hold. What is a hold? It is an informal procedure—nowhere mentioned in Senate rules—where an individual senator notifies the body’s leaders that he or she will hold up a bill or nomination by denying unanimous consent to allow it to move forward. The hold was originally employed simply as a courtesy—a way to delay action for a week or two if a lawmaker had a scheduling conflict or needed time to muster arguments for debate. But over the past 30 years, it has morphed into a process where any individual can block something or someone indefinitely or permanently—and often anonymously. Now, at any given time, there are dozens of holds on nominees for executive positions and judgeships, and on bills. Of course, bills can be brought up even if there is not unanimous consent, but to do so is cumbersome and often requires 60, rather than 50, votes to proceed.
Tom Coburn is the undisputed hold champion in the Senate, with at least 80 bills and nominations in limbo because of his actions. His closest rival in the field is fellow Republican Jim DeMint. But these days, all senators use holds. Where in the past, holds were targeted at bills or nominees senators strongly opposed, nowadays they are routinely employed against bills or people the senator has nothing against, but wants to take as hostages for leverage on something utterly unrelated to the hold itself. In 2003, 212 Air Force promotions were halted by an anonymous hold, which (we learned months later) was an effort by Senator Larry Craig (R) of Idaho to force the Defense Department to station four new C-130 cargo planes in his state. And even Coburn has found the tables turned on him: a Coburn bill cosponsored with Senator Barack Obama (D-IL) that “would create a single website with access to information on nearly all recipients of federal funding”—a way for watchdog groups to track pork and seamy relationships between lawmakers and earmark recipients—was held up for a long time by a bipartisan duo of old Senate bulls, Robert Byrd (D-WV) and Ted Stevens (R-AK), before public attention to the blockage forced action and enabled the bill to be made into law.
The role of skunk at the garden party is time-honored, with the title carried over the years by both Democratic and Republican members of Congress.
The contemporary practice of hold-as-hostage and hold-as-bill-or-nominee-killer has been building for several decades and reflects larger changes in the Senate and society. The always individual-oriented Senate has become even more indulgent of the demands of each of its 100 egotists. Even though some members may rail against the injustice of an individual single-handedly stopping a bill in its tracks, they do not want to end a practice that they themselves want to keep in the arsenal.
The big story of the 110th Senate, though, is not the explosion of individual use of an unwritten practice, but the sharply expanded use of the formal rules as a partisan political tactic to delay and block action by the majority. Consider the filibuster. It has a long history, going back to the early days of the Republic. Unlimited debate became a core feature of the Senate in the first decade of the 19th century, when the Senate abandoned a rule to move the previous question—which allows a majority to stop debate and move to a vote on any issue. From that point on, any senator could take to the floor and hold it as long as he could stay there. That tradition lasted until 1917, when a filibuster over efforts to rearm America in preparation for the World War led to a backlash and a new rule allowing cloture—stopping the debate—if two-thirds of senators voting agreed. (That rule stayed in effect until the 1970s, when the number was reduced to 60 senators.)
From its earliest incarnation, the filibuster was generally reserved for issues of great national importance, employed by one or more senators who were passionate enough about something that they would bring the entire body to a halt. The civil rights issue fit this pattern exactly: Southern senators led lengthy filibusters on voting rights and civil rights bills during the 1950s and 1960s, effectively killing them all until President Lyndon Johnson was able to overcome the procedural hurdle in 1965. In each case, the drama was palpable as the Senate moved to round-the-clock sessions—aides wheeling cots into the antechambers—to try to break the filibuster.
But after the 1965 Voting Rights Act, the filibuster began to change as Senate leaders tried to make their colleagues’ lives easier and move the agenda along; no longer would there be days or weeks of round-the-clock sessions, but instead simple votes periodically on cloture motions to get to the number to break the log-jam, while other business carried on as usual.
As so often happens, the unintended consequences of a well-intentioned move took over; instead of expediting business, the change in practice meant an increase in filibusters because it became so much easier to raise the bar to 60 or more, with no 12- or 24-hour marathon speeches required.
Still, formal filibuster actions—meaning actual cloture motions to shut off debate—remained relatively rare. Often, Senate leaders would either find ways to accommodate objections or quietly shelve bills or nominations that would have trouble getting to 60. In the 1970s, the average number of cloture motions filed in a given month was less than two; it moved to around three a month in the 1990s. This Congress, we are on track for two or more a week. The number of cloture motions filed in 1993, the first year of the Clinton presidency, was 20. It was 21 in 1995, the first year of the newly Republican Senate. As of the end of the first session of the 110th Congress, there were 60 cloture motions, nearing an all-time record.
Placing a hold has morphed into a process where any individual can block something or someone indefinitely or permanently—and often anonymously.
What makes this Congress different? The most interesting change is GOP strategy. Republican Senate leader Mitch McConnell (KY) has threatened filibuster on a wide range of issues, in part to force Majority Leader Harry Reid (D-NV) to negotiate with his party and in part just to gum up the works. Republicans have invoked filibusters or used other delaying tactics on controversial issues like Medicare prescription drugs, the war in Iraq, and domestic surveillance—and on non-controversial issues like ethics reform and electronic campaign disclosure.
To be sure, Majority Leader Reid has been more confrontational than accommodating, frequently trying to short-circuit this process by invoking cloture at the start. But Republicans have been able to derail the process repeatedly by denying unanimous consent to move forward and by requiring cloture. To supersede the tactics on even a consensus measure, Reid often has to go through three separate cloture battles, each one allowing a lot of debate, including 30 hours of it even after cloture is invoked.
Is this obstructionism? Yes, according to none other than Senate authority Trent Lott (R-MS), the former minority whip. Lott told Roll Call last year, “The strategy of being obstructionist can work or fail. For [former Senate Minority Leader Tom] Daschle, it failed. For Reid it succeeded, and so far it’s working for us.”
It has been working so well that, before he resigned, Senator Lott was having second thoughts, and called for a return to the Gang of 14—the bipartisan coalition that kept the Senate from blowing up its rules to confirm President Bush’s judicial nominees—to find some accommodation between the parties to move more vital legislation along.
The first step to creating more efficiency in the Senate would be to have a real filibuster now and then.
Can anything be done to create a little more efficiency in the Senate without altering its basic character? The first big step would be to go back to the future—to return at least on occasion to real filibusters, bringing the place to a halt and going round the clock to break the deadlock. This would deter the casual use of delaying tactics and dramatize the problem. It should be accompanied by a much more rigorous Senate schedule, ideally five full days a week in session for three consecutive weeks, with one week off to attend to constituent needs.
There are also a few rule changes that would help. Eliminating the opportunity to filibuster on the motion to proceed to debate would remove one of the three separate bites at the apple on every bill, while keeping the essence of the filibuster and cloture intact. Moving from requiring unanimous consent to do almost anything in the Senate to a slightly higher threshold (say, requiring five objections to stop something instead of just one) would dilute the power of one crank to bring the whole institution to a halt. Making all holds public, something pushed for several years by Senators Charles Grassley (R-IA) and Ron Wyden (D-OR), would make a small difference. But the problems here are less the rules and more the culture. And that is not going to change anytime soon.
Norman Ornstein is a resident scholar at the American Enterprise Institute.
Illustrations by John Weber.