Dysfunctional Senate: is filibuster reform the way to go?

I am deeply concerned for the future of American democracy. The Senate’s failure to function threatens the nation’s long democratic history. The government’s system of checks and balances require that all branches of government work. The House of Representatives, the Supreme Court, and the Presidency are all operating along traditional lines.

But the rise of the filibuster as the normal modus operandi in the Senate sticks a wrench in government machinery that will be very difficult to remove.

The Senate’s collapse is the single greatest threat to democracy that the United States has ever faced. What has happened? Throughout most of American history, the filibuster was a rarely used tool. Before the last decade, the filibuster was most noted for its infamous use by southern senators to hold up civil rights and anti-lynching legislation in the early and mid 20th century.

At that time, filibustering senators had to speak until the one side gave up. Strom Thurmond once gave a 24-hour speech filibustering the Civil Rights Act of 1957.

In recent years, both Democrats and Republicans have used the filibuster with greater frequency. During the 1990s and 2000s, the filibuster proved an occasional roadblock to legislation. But Republicans decided to rely on the filibuster as their main strategy to stop Democratic legislation after the 2008 election. Majority Leaders Harry Reid’s weak leadership has allowed this strategy to succeed, in part by not forcing Republicans to stand in front of the American people and defend themselves.

The filibuster’s appeal is twofold. First, it allows the party in minority to block legislation it dislikes. Second, it gives unprecedented power to individual senators. The first means that on anything but extremely popular legislation, the Senate will not be able to pass bills, making day-to-day governance impossible.

More infuriating is why so few senators want to reform the filibuster. If you are a conservative Democrat like Evan Bayh, Ben Nelson, or Mary Landrieu, simple majority rule isolates you. If the Democrats need 51 votes to pass legislation, then these conservatives can vote with the Republicans and lose. But in a situation where 60 votes are needed, each and every Senator becomes that much more important.

Joe Lieberman can personally kill any bill he doesn’t like, making him exponentially more powerful. Not only is the system broken, but individual senators have a vested interest in ensuring that it stays that way.

The closest scenario to the present happened during the Great Depression. Fighting an unprecedented economic crisis in American history, President Franklin Roosevelt and large Democratic majorities in Congress passed sweeping legislation to overhaul the nation’s financial system, regulate business, and institute the beginnings of a welfare state for poor and elderly citizens. At a time when some European nations reacted to the Depression by turning toward fascism, Americans needed real reform to avoid radical threats of their own.

The Supreme Court, however, was dominated by members appointed by the conservative Republican presidents who preceded Roosevelt. The Court routinely ruled his programs unconstitutional and got in the way of the nation putting itself back together.

Roosevelt responded by trying to pack the court with additional justices. Calling the Supreme Court too old and out of touch, he wanted to add additional justices so his New Deal programs could be ruled constitutional. This challenge to America’s system of checks and balances outraged Americans and nearly brought down the New Deal.

As much as I love Roosevelt, he was wrong there. The Founding Fathers designed the Supreme Court as arbiters of the law. While I strongly disagree with the Court’s decisions, as an institution, it worked precisely as designed.

Today, a few senators are calling for reforming the filibuster. Senator Tom Udall was the first to support changing the rules. In the past week, Udall’s ideas have gained momentum. Tom Harkin and Jeanne Shaheen have unveiled a plan to weaken the filibuster. That plan has the support of the powerful Democratic senator Dick Durbin.

However, I am deeply skeptical about real filibuster reform. Though all Republicans will bitterly complain when Democrats use the filibuster against them, they are too shortsighted to see the long-term advantages of majority rule. The filibuster is stalling Obama now, so what Republican will vote to change it? Between Republicans and empowered conservative Democrats, I believe that meaningful reform has almost no chance to pass.

Republicans don’t seem to realize that Democrats will use the same tactics when they lose the majority. Perhaps the Republicans are counting on weak centrist Democrats fleeing their party on routine voting matters, but given that a filibuster only needs forty-one votes, it’s unlikely Republicans will find controlling the Senate much easier than Democrats.

The upshot of an unregulated filibuster will be unprecedented executive rule. This logical way around the filibuster is also very worrisome. Presidents will increasingly rule by executive order. Both Bill Clinton and George W. Bush frequently resorted to this. Barack Obama has resisted, but his talk of changing the tone in Washington has collided head-on with reality.

While executive orders make sense from the president’s perspective, an increased reliance upon executive power could permanently tilt governmental power to the presidency. This could destroy the system of checks and balances that underpinned the nation’s long-term political stability and leave the nation vulnerable to presidents unilaterally ruling as demagogues. We already saw more than a hint of this during the Bush years.

I fear the Senate’s decline will make Bush-like presidents the rule rather than the exception. And neither the nation nor the world can live with that outcome.