Washington dys­func­tion's cure is in sight

The Pak Banker - - Editorial - Michael Wald­man

Set your watches to noon on Jan. 5. That's the first minute of the first hour of the first day of the new con­gres­sional ses­sion. And that is when the U.S. Se­nate can change its rules by sim­ple ma­jor­ity, 51 votes, rather the 67 needed oth­er­wise. A large group of Demo­cratic sen­a­tors, frus­trated by the cham­ber's de­lay and ob­struc­tion, are pre­par­ing to use that brief win­dow to chal­lenge the fil­i­buster. It should get in­ter­est­ing.

The Se­nate, long styled as the world's great­est de­lib­er­a­tive body, much of the time could com­pete for most dys­func­tional. When we see a burst of ac­tiv­ity, as in this pro­duc­tive lame-duck ses­sion, it's easy to think the pace has picked up. Only next to a snail does a tur­tle look like Sec­re­tar­iat.

Con­sider: The 2009-2010 Congress saw 136 clo­ture mo­tions --at­tempts to as­sem­ble 60 votes to break a fil­i­buster --com­pared with 68 in 2005-2006 and just 54 in the half-cen­tury from 1921 to 1971.

Com­pound­ing the overuse of the fil­i­buster is the prac­tice of se­cret "holds." By tra­di­tion, any sen­a­tor can qui­etly put his or her thumb on a pend­ing mea­sure, of­ten a nom­i­na­tion of­fered by the pres­i­dent. These holds can pitch nom­i­nees into Kafkaesque limbo. As of last month, 150 nom­i­nees awaited votes. Washington in­sid­ers know this can crip­ple the ex­ec­u­tive branch and keep tal­ented ap­pointees from ac­cept­ing govern­ment jobs.

Ju­di­cial nom­i­na­tions have reached a cri­sis point. The Al­liance for Jus­tice re­ports that there are 111 va­can­cies and that Pres­i­dent Barack Obama has won con­fir­ma­tion of only 60 judges, com­pared with 100 for Ge­orge W. Bush and 126 for Bill Clin­ton at the same point in their terms.

Fil­i­busters and holds have had a pro­found ef­fect on the work of Congress. The Se­nate hasn't passed any of the 12 ap­pro­pri­a­tions bills for 2011. A pro­posal to re­quire bet­ter dis­clo­sure of spend­ing on po­lit­i­cal ad­ver­tis­ing was backed by 59 sen­a­tors, yet failed to be­come law.

Is this prob­lem new? Af­ter all, we re­mem­ber Jimmy Ste­wart hold­ing forth with a fil­i­buster on the Se­nate floor in "Mr. Smith Goes to Washington" (1939).

Mr. Smith's Se­nate no longer ex­ists. Long gov­erned by ar­cane rules and a tra­di­tion of un­lim­ited de­bate, the cham­ber has lost the gen­teel bi­par­ti­san ethos that made it pos­si­ble to still get things done.

The fil­i­buster once was rare, re­served for epochal bat­tles, such as when sen­a­tors talked all night, read­ing the phone book, to block civil-rights leg­is­la­tion. Ma­jor laws such as the one cre­at­ing Medi­care avoided a fil­i­buster. Now, in a time of rigid party dis­ci­pline con­veyed by tweeted talk­ing points, rules crafted for a gen­tler time are used to bring Congress to a halt.

This im­poses a su­per­ma­jor­ity re­quire­ment un­prece­dented in U.S. his­tory. We rou­tinely slip into say­ing, "The pres­i­dent needs 60 votes" in the Se­nate to win pas­sage of this or that bill. If high-school stu­dents say on a test that the an­swer is 51, are they right or wrong?

Sixty isn't what Amer­ica's founders had in mind. As Alexan­der Hamil­ton noted, re­quir­ing a su­per­ma­jor­ity sub­sti­tutes "the plea­sure, caprice, or ar­ti­fices of an in­signif­i­cant, tur­bu­lent, or cor­rupt junto, to the reg­u­lar de­lib­er­a­tions and de­ci­sions of a re­spectable ma­jor­ity."

The Con­sti­tu­tion makes clear there are seven times when a su­per­ma­jor­ity is needed. Treaties, for ex­am­ple, need ap­proval by two-thirds of the Se­nate. Nor­mal leg­is­la­tion is sup­posed to be passed by a ma­jor­ity.

De­fend­ers of the fil­i­buster cite Ge­orge Washington, who likened the Se­nate to a saucer that cools the hot cof­fee, pre­sum­ably poured by the tem­pes­tu­ous House. Be that as it may, the Se­nate un­der cur­rent prac­tice throws the cof­fee in the trash. That can't be what our first pres­i­dent had in mind.

Some sen­a­tors, es­pe­cially younger ones, share the frus­tra­tion. Sen­a­tor Jeff Merkley, an Ore­gon Demo­crat who joined the Se­nate in Jan­uary 2009, has pro­posed lim­its on the use of the fil­i­buster. One of his ideas: fil­i­bus­ter­ing sen­a­tors should have to come out of their of­fices and ac­tu­ally hold forth on the Se­nate floor. Last week, all 53 Demo­cratic sen­a­tors re­turn­ing in 2011 signed a let­ter to Ma­jor­ity Leader Harry Reid de­mand­ing ac­tion on these ideas.

This is the per­fect time for re­form. Democrats will have the ma­jor­ity in the next Se­nate. Repub­li­cans, con­fi­dent af­ter the last elec­tion, may hold the ma­jor­ity start­ing in 2013. We don't know who will be pres­i­dent then, ei­ther. Rules changes to­day could make it harder for lib­er­als to ob­struct con­ser­va­tive poli­cies and nom­i­nees.

Usu­ally, it takes 67 votes to change Se­nate rules. (Says who? Se­nate rules.) But when a new Congress starts, there's solid prece­dent to ar­gue that the 67-vote re­quire­ment doesn't ap­ply. As pre­sid­ing of­fi­cer of the Se­nate, two U.S. vice pres­i­dents --Demo­crat Hu­bert Humphrey and Repub­li­can Richard Nixon --have ruled that a ma­jor­ity is good enough. Reid and Vice Pres­i­dent Joseph Bi­den both need to be on board. Robert Caro, in "Mas­ter of the Se­nate," re­calls the high drama in 1957 when Nixon, work­ing with Se­nate lib­er­als on be­half of civil rights, tried to curb the fil­i­buster at the start of the ses­sion --only to be out­wit­ted by Ma­jor­ity Leader Lyndon John­son in a scene of sen­a­tors leap­ing to their feet, arms flail­ing, yelling to be rec­og­nized.

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