U.S. Senate = dysfunction

Thanks to the “imaginary filibuster,” an overwhelming majority of Democrats in the U.S. Senate cannot pass measures by majority vote. They thus can wind up stymied by a handful of Blue Dogs or a minority of Republicans.

Sarah was a regular volunteer for the Democratic Party after
she moved to Nevada away from the South. She first became aware of
Harry Reid when he was running for lieutenant governor, and she had
done some work on a couple of his campaigns over the years.

One evening in 2004, Sarah (not her real name) was at the county
Democratic headquarters when she overheard some other workers talking
about Reid’s efforts to protect the filibuster in the Senate
against Republican efforts to invoke a “nuclear option” to
stop filibusters. She couldn’t believe her ears, and the other
volunteers were also confused by Reid’s actions. For as long as
Democrats could remember, opposition to the filibuster had been basic
Democratic Party doctrine. Nor was it just dogma to Sarah—as an
African-American from the South, she had grown up seeing the filibuster
used to keep her down. Now a man she had helped elect was leading an
effort to preserve it. Tears welled up in her eyes, and she soon
departed the office. She rarely came to party headquarters after
that.

Sarah might have reacted even more strongly if she had known that
the filibusters Reid was trying to save were imaginary.
Imaginary—but terribly destructive of
governance.

Majority rule ended

Some of the most polarizing issues of the era have been approved by
narrow votes in the Senate. The war over Kuwait was authorized by the
Senate in 1991 on a 52-47 vote. Clarence Thomas’ nomination to
the U.S. Supreme Court was approved on a 52-48 vote that same year. Two
years later, President Bill Clinton’s economic program won
approval with 50 votes—including a tie-breaking vote by Vice
President Al Gore—against 49 in opposition.

But that was then.

Today those simple majorities would doom their measures. In this
century, legislation with solid majority support fails.

For example: In the second year of George W. Bush’s
administration, 56 of 100 senators voted for an economic stimulus
package, which therefore failed to pass. And in 2008, 51 senators voted
for a windfall profits tax on oil, which failed to pass. This was
shortly after 58 senators voted for a Senate rule against tax hikes,
which also failed to pass.

The reason is the U.S. Senate’s devotion to a procedure called
the imaginary filibuster. This procedure has undercut the body’s
ability to legislate, but senators seem unwilling to drop it.

The filibuster—the real one—has been with the
Senate for 203 of the nation’s 233 years. Though Reid and others
like to describe it as a tradition established by the founders,
that’s nonsense. Originally, the founding Senate and House of
Representatives both could cut off debate with a simple majority vote,
much like most governing bodies. But in 1806, the Senate—without,
scholars say, fully realizing the implications for ending
debate—dropped the procedure that made it possible to operate
that way. Thereafter, senators could talk as long as they wanted to,
and there was no way to stop them.

During World War I, when appointed senators were giving way to
popularly elected senators, and there was progressive sentiment for
more democratic processes, a rule was finally adopted under which
filibusters could be ended with a two-thirds vote. All during the
1950s, 1960s and 1970s, Democratic Party leaders tried to reduce that
threshold or do away with filibusters altogether. That sentiment is
still strong at the Democratic grassroots around the nation, where the
filibuster is identified with racism. In 1964, a Senate filibuster
against the Civil Rights Act lasted for 57 working days, including six
Saturdays. But Democratic congressional leaders have made their peace
with the procedure, though they did succeed in reducing the threshold
to three-fifths, which in today’s 100-member Senate is 60
votes.

A real filibuster can be dramatic. Senators who wanted to hold the
floor were known to strap small urinals to their legs. Cots were often
brought in so senators could sleep near the hall.

But all that applies to actual filibusters. What is clogging
up the Senate these days is threatened filibusters that
don’t actually happen. This is the imaginary filibuster, also
called the trivialized filibuster (by scholar Jean Edward Smith) and
the phantom filibuster (by scholar David RePass).

In 1975, party leaders in the U.S. Senate adopted a new procedure to
deal with filibusters. In order to keep the Senate floor clear for
other business, if senators merely threatened to filibuster, the body
would automatically impose a 60-vote limit on cutting off debate. No
one would have to actually filibuster, and the Senate floor would be
kept clear for other business. And bills with majority support would
die. For the price of a threat, the votes needed to pass a bill could
be raised from 50 to 60.

It’s not clear why no one foresaw what would eventually
happen, but soon the number of alleged “filibusters” was
rising. Delighted senators found they had a new tool to stop
legislation. With just a threat to filibuster, a senator could
stop a bill cold even though the Senate supported it—and without
having to actually filibuster. A single senator can unilaterally make
it more difficult to enact legislation.

Science-fiction lawmaking

Even during what racist Southern senators would consider the glory
days of the filibuster, it was never used so frequently as to exceed a
single-digit number in any year. During the titanic struggle to break
the 1964 Civil Rights Act filibuster, there was a total of one
filibuster.

Today, as abuse of the 1975 system grows, the number of alleged
filibusters each year is routinely in double digits—and in the
last Congress, the number rose to heights never seen before—three
digits. Where once filibusters were limited to major pieces of
legislation like a civil-rights act, today ordinary bills like Senate
Bill 1023, the Travel Promotion Act of 2009, must collect 60 votes to
break an imaginary filibuster.

The imaginary filibuster has produced nothing but disruption. It
frustrates majority rule by putting power in the hands of the minority.
When voters elected a Republican Senate, the Democrats were empowered
to control the chamber on vote after vote. Majorities of 58 or 59 votes
were blocked by 41 or 42. After the Democrats regained a majority, the
minority GOP can now decide what gets out of the Senate. As a result,
Democrats watered down health-care reform repeatedly until it was
toothless to get Republican and conservative Democratic votes (and
still didn’t get them).

“It was during the Clinton years that the dam broke,”
Smith wrote in 2009. “In the 103rd Congress (1993-1994), 32
filibusters were employed to kill a variety of presidential initiatives
ranging from campaign finance reform to grazing fees on federal land.
Between 1999 and 2007, the number of Senate filibusters varied between
20 and 37 per session, a bipartisan effort.”

These were, remember, filibusters that didn’t actually happen.
It is an indication of how well congressional leaders have spun this
process that even Smith refers to filibusters, as though they actually
happened, rather than filibuster threats. The same terminology afflicts
news coverage.

Just during Reid’s time as majority leader—January 2007
to now—144 votes have been needed to cut off filibusters that
never happened. (Cloture is a vote to end debate.) All this has
made the Democratic grassroots under President Barack Obama restive.
They want the imaginary filibuster system ended, or at least that those
who threaten filibusters be required to actually strap on the urinals,
line up the cots and filibuster. During the stimulus debate,
“Make them filibuster” became a common cry among Democratic
activists. With health care being held hostage by an imaginary
filibuster, those cries have become louder.

The imaginary filibuster is a special problem for Democrats because
it confirms the old charge of “Democrats can’t
govern,” and the Democrats have played their assigned role. After
the 2008 election, when it appeared the party had 58 votes in the
Senate, they started trying to lower expectations of whether Democratic
policies would actually be enacted by the Senate.

After election challenges and recounts were settled, and the
Democrats achieved 60 votes, the pace of alibis increased instead of
slackened. Now it was their own Blue Dogs who were the problem. The
upshot, though, is that an overwhelming majority of Democrats in what
they claim is the “greatest deliberative body in the world”
cannot function as well as a city council by passing measures by
majority vote. It is the Democrats who allow themselves to be stymied
by a handful of Blue Dogs or a minority of Republicans, when all they
really needed to pass the stimulus or health-care reform is 51 votes.
Without the imaginary filibuster, the Democrats would have the votes
necessary for their entire program—health care, climate change,
etc.—without the Blue Dogs and Republicans.

Photo By Dennis Myers During Harry Reid’s time as Senate majority leader, 144 votes have been needed to cut off filibusters that never even happened, i.e., imaginary ones. A decent health-care bill is just one reform being held hostage by an imaginary filibuster.

Whose Senate?

“The phantom filibuster is clearly unconstitutional,”
wrote professor David RePass. “The Constitution certainly does
not call for a supermajority before debate on any controversial measure
can begin.”

Senators respond that the founders also allow the Senate to write
its own rules. But when SN&R tried to find the rule covering
imaginary filibusters, it didn’t exist. According to the Senate
Historical Office, the rules have never been changed to reflect the
1975 innovation: “The only rule that the Senate has regarding
filibusters and cloture is Rule 22, which sets a 3/5ths vote for
cutting off debate, which was adopted in 1975. The
‘two-track’ process is simply a leadership tactic and is
not codified in the rules.”

In other words, the imaginary filibuster is not a Senate
requirement. That makes returning the Senate to majority rule a minor
matter. It can be ended simply by Senate Majority Leader Harry Reid
announcing that he is discontinuing the tactic. Suddenly passing
legislation will go back to being a matter of 51 votes. If he had done
so at the start of this Congress, the Democratic program would already
be enacted.

Others say Reid, if he does not want to act that directly, has
another option: Require actual filibusters. Because conducting an
actual filibuster is such a burdensome task, that alone would drop the
number of filibusters back to the old level fast.

“It is up to Mr. Reid,” according to RePass. “He
can do away with the supermajority requirement for virtually all
significant measures and return majority rule to the Senate.”

When he first ran for the Senate, Reid said he was flatly opposed to
filibusters. “I’m personally against the filibuster in the
Senate,” Reid said. “It’s crazy. One man can kill
anything he wants to. One man can stop the process of government.
That’s not right. I think the rules of Congress have to be
changed.”

But Reid, as a state legislator, gambling regulator and member of
Congress, has never been a reformer—he tends to work with the
governing mechanism he finds in place when he arrives. Once in
Washington, he changed his mind about the filibuster, and by the time
Senate Republicans during the Bush administration threatened to invoke
a “nuclear option” to end filibusters against judgeship
nominations, Reid was onboard.

Some members of the Senate don’t like to talk about its
internal workings, and some act as though such matters are not the
public’s business. When asked about the imaginary filibuster,
they get vague or avoid the issue.

Restoring
majority rule

Not surprisingly, the House of Representatives also sometimes gets
restless over the Senate’s indirection. In February, Politico
reported that House Democratic leader Steny Hoyer—who had been
hearing from his angry members—was upset with the stimulus
package being hacked up at the behest of three GOP senators and pushed
Speaker Nancy Pelosi to stop tolerating the Senate’s constant
concessions. Politico quoted one House Democrat about the three
Republican senators “dictating terms to 250” House
Democrats.

A few days later, Reid’s office put out a memo claiming that
there was no way for him to force the Republicans to actually
filibuster. It said one Republican senator could be “forced to
sit on the [Senate] floor to keep us from voting on that legislation
for a finite period of time, according to existing rules, but he/she
can’t be forced to keep talking for an indefinite period of
time.”

But that is premised not on “existing rules” but on the
oft-abused 1975 system of imaginary filibusters being kept in place as
a political tactic, not a rule. Dropping that tactic and going back to
majority rule and rare filibusters would solve that problem.

Some advocates of the filibuster say it protects the right to
debate. Real filibusters prevent debate. As for imaginary filibusters,
Reid last week complained that the GOP was refusing to debate on health
care, meaning they would not support cloture on the imaginary
filibuster against health-insurance changes.

Last week, labor leader Richard Yeselson compared the Senate’s
inability to function on major issues to California’s ballot
initiative plague: “We are living through the California-fication
of America—a country in which the combination of a determined
minority and a procedural supermajority legislative requirement makes
it impossible to rationally address public-policy challenges. And thus
the Democratic president and his allies in Congress are evaluated on
the basis of extreme compromise measures … rather than the
substantive, policy achievements of bills that would merely require a
simple majority to pass.”

At the moment, the issue before the Senate is health-insurance
changes, which drifted for weeks as Reid searched for 60 votes. In a
few weeks, it will be climate change. On and on it will go, majority
rule being subverted by procedure.

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About Dennis Myers 1397 Articles
Dennis Myers was the news editor of the Reno News & Review. He was a journalist for more than four decades. In 1987-88 he was chief deputy secretary of state of Nevada. He was coauthor of Uniquely Nevada, a children’s history textbook, and a contributor to the books The Mythical West and Covering the Courts in Nevada. In September, 2020, he was inducted into the Nevada Newspaper Hall of Fame.