In about two weeks, Americans will vote in the Congressional midterm elections. The media is focused on predicting how many seats Democrats will lose, particularly whether the party will lose caucusing majorities in the House and Senate.
Unfortunately, the media is also promoting a myth about how the Senate works. Current headlines, including "Senate control leans toward Democrats," "Republicans improve chances for Senate control," "Race to control Senate," and "New polls show Senate control rests on four toss-up states," all contain a major misrepresentation: They assume that the modern Senate is controllable.
Even if Republicans win a 51-seat Senate majority in November, they will hardly have the ability to manage the chamber. If Democrats hold onto a similarly slim majority, they will also be unable to have "control."
One reason for any majority's lack of power is the filibuster, a practice that requires a three-fifths majority of 60 votes to end debate on a bill and actually move to a vote.
The Constitution's framers never planned to allow for a de facto supermajority requirement to pass legislation. In Federalist No. 58 of "The Federalist Papers," James Madison rejected requiring "more than a majority" to pass legislation, because then "power would be transferred to the minority," and "the fundamental principle of free government would be reversed."
Despite the founders' intentions, the Senate still adopted the undemocratic practice of the filibuster. "When we scour early Senate history," explained Sarah Binder, a George Washington University professor of political science in testimony before Congress, "we discover that the filibuster was created by mistake." In 1806, a rule that could have let a simple majority bring a bill to a vote was deleted, yet it took several decades before senators realized they had created a way to filibuster.
During the rest of the 19th century, Senate minorities only undertook 23 filibusters. For much of the 20th century, a filibuster occurred on average just once a year. But the frequency steadily increased in recent decades, and after Republicans lost their Senate majority in 2006, they filibustered twice as often as Democrats had in the previous session, bringing the total up to a record high of 139 for the 110th Congress. It's now taken as a given that a bill needs a 60-vote supermajority to pass the Senate. However, even as recently as 2003, then-President George W. Bush was able to pass a significant expansion of Medicare with only 54 votes in the Senate. On that bill, several members voted for cloture to end the filibuster and bring a vote, even though they later voted against the bill, allowing it to pass by majority-rule.
However, when the Senate considered its health care bill this past year, the Republican leadership barred its members from voting against the party's filibusters, effectively mandating that the reform needed a 60-vote supermajority to pass. The chamber's norms have changed rapidly.
This practice, though, is unsustainable. With the exception of the second half of 2009, Democrats haven't controlled 60 or more Senate seats since the 1970s. Republicans haven't had that big a majority since before the Great Depression. If both parties continue to insist upon supermajority votes for virtually every bill, then neither party can expect to enact its biggest priorities for any more than a few years every century.
Of course, the new 60-vote requirement isn't the only tool the minority can use to stop the majority from passing bills voters elected them to pass. Any one senator can dramatically slow down the chamber's operation because any member is allowed to request a hold on a piece of legislation or a nomination.
For example, one of President Obama's nominees to the Federal Reserve, Peter Diamond, has had to wait six months to get a Senate confirmation vote because one senator, Richard Shelby, R-Ala., thinks Diamond doesn't have sufficiently broad macroeconomic experience. Last week, Diamond won the Nobel Prize in Economics, but Shelby still won't budge.
Similarly, Obama's nominee to head the Office of Management and Budget, Jack Lew, has waited months for a Senate confirmation vote because one senator, Mary Landrieu, D-La., has placed a hold based on unrelated concerns over an oil drilling moratorium.
According to a report from the Center for American Progress, if senators used their full powers of holds and filibusters on every presidential nominee, it would take nine years of floor debate before a presidential administration could be fully staffed. The report's author, Ian Millhiser, concludes, "So long as unanimous consent — all 100 senators — is required to move Senate business forward in a timely manner, it will remain far too easy to abuse the Senate rules and bring progress to a standstill."
The Senate would be ineffective enough if it could only be controlled by 60-vote
supermajorities. However, holds and individual obstruction mean that it often takes complete unanimity to manage the chamber smoothly. Because the Senate has not been running smoothly, 420 bills were passed by the House in the last two years that have never even been considered by Senate. Of those bills, 404 passed the House with at least 60 percent support.
Unless Senate procedure can be reformed to allow simple majorities to pass bills and confirm nominees within a reasonable timeframe, neither party can hope to enact its agenda or run a presidential administration. If neither party can fulfill the agenda it was elected to fulfill, then elections become less meaningful — and voters lose some of their ability to influence the direction of government.
William Tomasko '13 is a political science concentrator from Washington, D.C.
He can be reached at
william_tomasko (at) brown.edu.
