What a year for Congress! In February, it passed an $820 billion fiscal stimulus with more infrastructure investment than tax cuts. By April, it approved the president's landmark progressive budget. In June, an unprecedented energy bill complete with carbon cap-and-trade provisions passed. Then, in September, it agreed to a bill to eliminate subsidies to private education lenders in favor of direct federal loans for college, with much of the savings directed to Pell Grants for low-income students. Next, it passed a major health-care reform bill in November, complete with a public insurance option. By December, an omnibus financial regulatory reform bill had cleared.
I know what you're thinking. It's all a lie. Congress hasn't achieved even half the accomplishments on that list -- but the House of Representatives has. The Senate did manage to pass the stimulus bill, but one that was much smaller and poorly constructed in comparison to the House version. Now, it is on the verge of passing a health-reform bill that lacks a public insurance option, much to the dismay of progressives. While the workaday legislation of appropriations and authorizations has made it through the upper chamber (though not without delays), the bulk of the Democrats' reform agenda has found itself stranded in limbo on the Capitol steps.
"There is a growing sense that we're lifting more than our share," California Rep. Xavier Becerra, one of the House leaders, vented to Politico. "Members are hoping the Senate will kick into gear because the public expects a lot more to get done."
Senators weren't particularly impressed with criticisms from their colleagues on the south side of Capitol Hill.
"You see, we have different rules here," Sen. Kent Conrad told reporters. "It's called the 'filibuster.' Maybe they haven't followed the number of Republican filibusters here, which is an all-time record."
Conrad, of course, hit the nail on the head. The problem is indeed the filibuster, and a chorus of voices has been raised against it, as it becomes increasingly clear that the filibuster is no longer being used as a tool to slow debate and, as George Washington put it, "cool" legislation. Instead, there's now a near-formal requirement that every bill be passed with a super-majority of 60 votes. That is not quite what the founders suggested.
Republicans in the Senate are dead set on acting as obstructionists, not opposition. They act to prevent bills from even being voted on -- Republicans have filibustered health-care reform four times, if you count their filibuster of the Iraq and Afghanistan funding bill, which their party didn't even oppose but merely used to delay a vote on health reform. (And still Republican aides have the temerity to complain about working on Christmas eve.)
This has real consequences. For one, the decision to obstruct everything makes the chances of bipartisan legislating impossible -- Republicans working on the instructions of leadership to prevent forward motion have little incentive to find constructive solutions to national problems. More broadly, it means that pressing concerns, like the rising costs and dropping quality of health care and the impending dangers of climate change, are much harder to address. It also strikes at the foundation of our democracy by making political institutions unaccountable to voters: When Americans elected the Democrats, they expected them to pursue their agenda, but now they've seen that even electing majorities in both Houses won't result in policy changes, leading to both anger and apathy.
The answer is to change the Senate rules. Sens. Tom Harkin and Joe Lieberman -- of all people -- proposed such a change in the mid-1990s, which would allow for a series of descending cloture votes: First, debate could be stopped with a 60-vote majority, but if that failed, another cloture vote could be brought after a period of several days with a 57-vote requirement. This would continue with diminishing number of votes needed for cloture until the bill came to a vote or it became clear that it could not pass, all while serving the "cooling" purpose envisioned by the founders. Congress could also limit the number of procedural points where filibusters could be deployed so that a piece of legislation could not be filibustered multiple times.
Some will worry that this will create an overly majoritarian chamber, where party and committee leadership hold too much power. But the limited membership of the chamber -- as well as other rules, including the reliance on unanimous consent agreements for much of the Senate business -- still gives great power to individual senators; they simply shouldn't be allowed to stand in the way of a basic majority.
Changing these rules mid-session would require a 67-vote majority, a hard number to reach considering the success Republicans have had in halting the majority's efforts to pass legislation and their charges of hypocrisy against the majority party for their past use of the obstruction technique (never mind that the use of the filibuster doubled when Republicans became the minority party). Nonetheless, Democrats should offer a simple compromise that would delay implementation of the filibuster reform for two electoral cycles, preventing any guarantee of which party would get the first crack at implementing its agenda. Democrats, should they hold on to their majority, could also rely on parliamentary precedents and change the rules with a simple majority vote at the beginning of the next session of Congress in 2011, but given the failure of Republicans to use the so-called nuclear option to abolish the filibuster in 2005, it seems that filibuster reform will need to be bipartisan.
In It's A Wonderful Life, George Bailey gets a chance to live out a counter-factual of his own life, seeing what would have happened had he not been around to help his friends, neighbors and family. In my version, It's a Wonderful Congress, Senate Majority Leader Harry Reid would be escorted into a world without a filibuster, where all that great legislation passed by the House made it through the Senate as well.
You see, Harry, you really have a wonderful Congress. Don't you see what a mistake it would be to just throw it away?
