The Senate managed to avert another crisis of its own making last month, but in doing so it has left in place the very undemocratic mechanisms that created the problem in the first place.
Senate leaders paved the way for confirmation votes on a half dozen or so Obama appointments – to the National Labor Relations Board, the Consumer Financial Protection Board, the Environmental Protection Agency and other agencies – and it prevented what Washington insiders like to call “the nuclear option,” i.e., the elimination of the filibuster.
In a deal that Sen. John McCain (R-Ariz.) called “a step forward” (New York Times), Republicans agreed to confirmation votes on the nominees as long as ”Democrats agreed to leave existing filibuster rules in place” (Washington Post).
The winners, according to the Washington pundit class, are President Barack Obama and his nominees, Senate Majority Leader Harry Reid and a small group of Republican “moderates,” while the losers are Senate Minority Leader Mitch McConnell, who was outflanked within his party and outmaneuvered by Reid.
This may be true politically, but a true accounting of winners and losers requires us to look beyond the political impact and assess what this deal means for American democracy. There are no winners – unless you want to count a larger corporate order that gets to count on a do-nothing Senate to prevent any real reform or accountability for the corporate classes, and the Senators themselves who get to keep every bit of their power and privilege going forward. The losers, of course, are the American people.
The filibuster is a relic of a patrician era in the Senate and one of a slate of undemocratic procedures – such as the Senate hold (one man can kill legislation) used to prevent change in the upper house. They are procedural, not constitutional, and make it impossible to move legislation forward unless a supermajority is on board.
The filibuster is just an extended debate, though under current Senate rules the debate does not have to happen (it’s why they call it the “silent filibuster”). Ending the filibuster requires 60 votes – three fifths of the Senate. (Previous rules called for a two-thirds vote.)
The filibuster has been an issue periodically since the so-called modern filibuster was put in place in 1917 and it has been altered twice, most recently in 1975. Critics blame the Republicans for the current stalemate, and they are right – but only up to a point. GOP obstructionism is only made possible by a set of rules that allow for that obstructionist behavior. If you are a member of the minority party and you know that the only way you can exercise your power is to filibuster and essentially create a 60-vote requirement for all legislation, you are going to do it. There are no incentives for not doing so, especially in an age of partisan regionalism. Most Senators do not face real competition at home from opponents of the opposite party (only a handful of states are really in play anymore), so there is no incentive to work across the aisle to move legislation or nominees forward. The days of the gentleman Senate are over.
There are some solid plans out there to reform the filibuster, plans that would force active participation by Senators or place time limits on filibuster efforts. Supporters say they would end gridlock and protect the interests of the minority.
But they ultimately do not protect the democratic process. The Constitution does not prohibit Senate rules such as the filibuster or House rules that place way too much authority in the hands of the speaker; but it also does not envision a supermajority for regular business or confirmation hearings. It does specifically outline those instances in which a supermajority is required: impeachment, the expelling of a member, ratification a treaty, or the override of a presidential veto. And it specifically says that the vice president, as president of the Senate, can vote only if the Senate “be equally divided” – meaning that he can break a tie, which can only happen if the simple majority is the rule by which the Senate is supposed to operate.
That should be the goal. No president, whether Democrat or Republican, liberal or conservative, should have his nominees held up by the thicket procedure and privilege that passes for the Senate rule book. The same goes for legislation. I understand the dangers that this would create if conservatives took over the Senate or won the White House, but elections are supposed to have consequences.
Hank Kalet is a poet and journalist in New Jersey. Email, firstname.lastname@example.org; blog, www.kaletblog.com; Twitter, @newspoet41.
From The Progressive Populist, August 15, 2013
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