U.S. Senate building, c. 1913, back when we had a real Senate. (photo: riptheskull via Flickr)

Whatever you think about the Democrats’ fecklessness, particularly in the Senate, consider: they have been able to get a majority of the chamber this year to agree to repealing Don’t Ask Don’t Tell, the DISCLOSE Act, the 9/11 health care bill, a $250 one-time benefit for Social Security recipients, and dozens of other bills. And these, of course, are only the bills they actually brought to the floor, to say nothing of bills with clear majority support, like the DREAM Act, an energy bill, the public option, a bigger and more focused stimulus package and who knows what else. If the Senate had the same rules as the House (or didn’t exist), we’d be talking about passing virtually the entire Democratic agenda in two years. Some of it would have involved compromises, but basically it all would have passed.

The Brennan Center for Justice is out today with a report on the abuse of the filibuster in the 111th Congress. It lays out pretty firmly that the Senate is simply not the body envisioned by the Founders when they created it. The minority party has successfully kept the Senate from even deliberating on legislation, Presidential appointments and judicial nominations. The Founders had no intention of forcing a 60-vote supermajority requirement for these matters, as the report shows. In fact, they created the Constitution as a response to the Articles of Confederation, which had several supermajority requirements which led to stalemate. The Constitution deliberately avoided those hurdles, laying out the very specific cases when such a supermajority would be needed. That has basically been abandoned due to obstruction.

This is from the foreword:

We write at a time when control of the body by one party is diminished, and when no one knows who will have the majority two years from now. Now, when the partisan implication of filibuster reform is unclear, is the ideal time to modernize Senate rules. For whichever party wields the gavel, our democracy is ill served by a Senate that is tangled in obsolete and easily-abused rules of its own making.

The House and Senate had basically identical rules until one rule, the motion for the “previous question,” was removed in 1806. This administrative decision has caused the stalemate we see today. Filibusters have consistently increased from session to session – and the number of legislation that doesn’t come to the floor because it has no chance of breaking a filibuster, or because Senate rules chew up so much time that the legislation isn’t important enough to waste a few days, has piled up as well. [cont’d.]

The filibuster also diminishes actual debate, as the report notes:

Finally, the modern filibuster has spurred an obsession with procedure that threatens to take precedence over substantive lawmaking. For example, as witnessed in the recent health care reform debate, legislators increasingly force bills through alternative procedural routes – like reconciliation – in order to beat the filibuster. The majority party also frequently employs a procedural tactic called “filling the amendment tree.” Because Senate Rules restrict the number of amendments pending at any
given time, the majority leader can shut out all other, potentially germane, amendments by offering one amendment after another, i.e., occupying all available branches of the tree. In these ways and others, time that should be spent on policy deliberation is wasted on an endless game of procedural chess, in which success is measured not by the passing of effective legislation, but by the advancement of individual or party goals.

That’s extremely debilitating, and the country deserves better. The lame duck session, with its minority veto of a bill specifically designed to increase minority rights, should leave no question that the Senate’s processes must be simplified and reformed. There are plans out there for this purpose, and a credible path put forward by Tom Udall to allow for the Senate to change its rules. It’s needed now more than ever.