By Clive Crook
Published: February 14 2010 19:39
Barack Obama’s ambitions to pass ground-breaking laws on healthcare and climate change have so far come to nothing. A second economic stimulus had seemed to be moving forward, but also now looks in trouble. Democrats occupy the White House and have big majorities in Congress, yet cannot get anything done. Why the paralysis?
Partly because the country views all these initiatives with suspicion. But one key factor is an anomalous institutional constraint: the Senate’s filibuster rule, which turns the Democrats’ 59-41 majority in the upper house into a de facto minority. Liberal commentators view this rule with splenetic fury, and one can see why. It makes America ungovernable, they say. We should get rid of it.
The interesting thing is that they could. Contrary to the belief of many Americans, the filibuster rule – which requires 60 senators to support “cloture”, thus bringing a measure under consideration to a vote – is not in the constitution. Getting rid of it does not require a constitutional amendment, which is a demanding process. The Senate could do this at its own initiative. Not only that, it could do it by simple majority vote.
Like most things on Capitol Hill, the process would be somewhat convoluted. A different Senate rule says that a supermajority in the chamber is needed to change Senate rules. Democrats would first have to revoke that rule, before moving on to the filibuster rule. The question is whether the change to the rule about changing rules would itself be constitutional, if it were passed only by a simple majority. The answer is that it would be.
Under the constitution, this is a matter of internal procedure, for the Senate to decide. If it chooses, it can impose on itself restrictions like the filibuster rule or the rule-making rule. But it can also subsequently remove them: otherwise, any one Senate might bind its successors in perpetuity. There is nothing in the constitution to say that changes to the rule-making rule need a supermajority.
Then why not do it? Aside from the fact that they would be ridding themselves of an infuriating constraint, Democrats could make an excellent principled case for the change. It is true, they might concede, that the original framers of the constitution foresaw the Senate as a delaying, blocking chamber. Senators were once chosen by state legislatures, for example, not by citizens: the idea was to protect state governments from federal encroachment. This was changed by constitutional amendment.
Even now, however, the Senate is a deliberately unrepresentative institution, in the sense that every state, no matter how small, gets two senators. This overweighting rewards bipartisan co-operation, checks the power of the majority and upholds states’ rights, the role envisaged for the Senate. The filibuster rule, Democrats could argue, is an extra step that goes too far. Empowering the Senate minority to this degree is constitutionally unwarranted and democratically objectionable.
Look at the results. Senate majorities as big as the one the Democrats still have are rare. With the minority Republicans acting in unison, the administration is stymied nonetheless. Polarised politics plus the filibuster rule means not delay and reflection, but outright paralysis.
On top of everything else, the Republicans’ current use of the filibuster rule is exceptional. Democrats who call it an abuse of customary procedure are right. Both sides have used it in the past, but usually with restraint. The Republicans have made it routine. The idea that a senator had to speak for days on end to block a vote – remember Mr Smith Goes to Washington – has long been dispensed with. Today, unless 60 votes can be found, a bill gets pulled, and nobody even has to stay up late.
In effect, by institutionalising the supermajority requirement, Republicans have amended the constitution without going to the trouble of passing an amendment. So why are the Democrats hesitating?
For the reason I mentioned at the outset. For the same reason Republicans can get away with voting as one to block legislation, despite being very much a minority. The answer is political calculation. If healthcare reform was popular, Democrats could revoke the filibuster rule, pass the legislation and be applauded for it. But if reform was popular there would be no need to revoke the filibuster rule in the first place, because Republicans would not dare to use it the way they have.
Everything the Democrats say about the Republican use of the filibuster is correct, except for that one awkward detail: most of the public does not like the Democrats’ proposals and wants them blocked. If Democrats change the rules to press on, they will be outmanoeuvring not just the Republicans but the country. The constitutional case for doing it might be impeccable. In my view, it is. But the party fears the price it would have to pay in November’s elections – and so it should.
In any democracy, if you wish to stay in power, there is a lot to be said for listening to voters. Even if a government thinks that people do not know what is good for them, it can at least try to persuade them. The scale of their victory in 2008 made Democrats forget this. It is not checks and balances out of control, or abuse of Senate rules, that has made the US ungovernable or stopped the Obama administration in its tracks. It is the Democrats’ failure to carry public opinion.
Copyright The Financial Times Limited 2010
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