Tyranny of the Minority

Last year was supposed to be the most transformative year in American public life since the sixties. Far reaching legislation seemed assured. Economic recovery, healthcare reform, a cap on carbon emissions, and financial regulation. What a difference a year makes. A failure to get any of these things done is blamed in part on dithering, undisciplined Democrats and their leader, Barack Obama. They’ve got 59 votes, and yet it’s as if the Republicans are in firm control of the legislative branch. Liberal pundits panicked and turned on their own. Too much hope, not enough audacity. Obama was naïve to think Republicans ever had any interest in bipartisanship, they said, and showed his inexperience in believing Democrats were any better.

These are all valid criticisms, but they fail to capture the real source of Americans’ frustration. Whatever the bad rap on Obama and the Democrats, were it not for the filibuster and lock-step Republican opposition, the President would have emerged from his first year in office with three—if not more—major legislative victories. The major disability of American democracy is not Democratic fecklessness so much as the pervasive and intensifying feeling that our legislative process is broken. Yet, in spite of the swelling public exasperation with a plainly dysfunctional system, there is virtually no talk of actually doing something about it.

To be sure, the filibuster is not, in principle, a bad idea. In an era of hyper-partisanship and 24-hour news cycles, even a legislative body as inherently deliberative as the Senate is in need of some sort of braking mechanism, for when those built into a system of checks and balances don’t suffice.

However, the minority is abusing it to stymie every legislative initiative without ever allowing an up-or-down vote on the merits. Republicans flat out refuse to play ball. The filibuster becomes a rallying point for the minority whose remaining moderates are under house arrest. Feeling its extraordinary power, the partisan majority puts overwhelming pressure on the few moderates in its ranks to hang with the caucus, surrendering corrupt concessions to keep them on board.

Both parties bear some responsibility for the filibuster’s increased use, which has been facilitated largely by “Rule 22,” which allows opponents to threaten a filibuster without ever having to execute it, sparing the minority of many of the political consequences of stalling legislation while getting to characterize the other side as ineffectual. But its dramatically increased use over the last three years coincides with the arrival and firm entrenchment of European-style, party-bloc voting by the Republicans, such that the filibuster has become a major impediment to the conduct of even routine Senate business.

Halfway through the current 111th Congress, the filibuster has already been invoked 74 times, putting it on pace to surpass the 110th Congress, which set the high mark with 139. That was more than double the mark set by the Democratic minority in the previous Congress, 68. By comparison, there were only 70 filibusters in the entire period between 1919 (when Senate rules were changed to allow supermajorities to end a filibuster) and 1970.

The result of this increased use has been that in 2009, the Senate spent more days in session than in any other year in the previous decade. It held more Saturday and Sunday sessions than any Congress of the past 20 years. Altogether, Congress spent 1,420 hours in session—the third busiest year dating back to 1991. And yet, it passed fewer measures and public laws than in any year of the previous decade, with the exception of 2001.

Healthcare spending in 2009 rose to $2.5 trillion, a global summit on climate change came and went, and, a year out of the greatest financial crisis since the Great Depression, we still aren’t regulating derivatives. Nothing got done.

There are a number of interesting proposals floating around for how the rules should be changed. One suggestion is that the votes necessary to invoke cloture—ending a filibuster—incrementally decrease the longer the bill is held up, incentivizing greater engagement among members of the minority party whose influence over legislation would diminish as time went on.

But as badly as the rules need to be revised, there are many things standing in their way. The logistics of actually effecting a rule change are daunting. Changing Senate rules usually requires 67 votes, all but impossible to come by in the current Washington climate. The only way around this is the constitutional option, also known as the “nuclear option,” which technically only requires 51 senators to vote to alter the filibuster rules. Republicans threatened to go nuclear in 2005 in response to Democratic filibusters of a few of President Bush’s judicial nominees. For technical reasons, however, the constitutional option can’t be exercised until the start of a new Congress in 2011, thus offering no near-term solution to Democrats.

This fall, Democrats will run against the Republicans as the party of “no.” If the Democrats emerge from the 2010 midterm elections battered but holding on to their majority, such a change would be highly implausible. (It would be extremely difficult to muster a simple majority for the change even in the current Congress.) If the election results are non-disastrous to the point of showing the tide turning in the Democrats’ direction, but (as is inevitable) the election still reduces their already inadequate majority, then they could try to strike a deal with Republicans to change the rules, using the nuclear option as leverage.

Merely to attempt such a maneuver would draw Republicans’ profound resistance and only heighten partisanship in the beltway. But if Obama maintains any aspirations of passing the significant portions of his agenda, what alternative does he have?

Clay A. Dumas ’11, a former Crimson associate editorial editor, is a social studies concentrator in Lowell House.