Remarkably, a Republican Party minority of 41 in the US Senate has rendered it difficult, and on some subjects impossible, for the Congress to legislate. Bills are held hostage to extortionate demands. Appointments, especially nominations to fill vacancies in the Federal Courts, are blocked, preventing courts and executive offices from performing their Constitutional functions. Blocking provisions of Senate Rule XXII and the Senates customary practices do not stem from the Constitution, but from the history of Southern white politicians efforts to prevent African-Americans from gaining effective citizenship in the wake of the Civil War. A democracy of more than 300,000,000 is paralyzed by the deliberate actions of a handful.
Abraham Lincoln said, in his First Inaugural, that
A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left. [Note 1]
Lincoln was, of course, talking about secession. In the sentence introducing the quote above, he said Plainly, the central idea of secession is the essence of anarchy. The issue in 2010 is not that the Republican ultras seek the rule of a minority, as a permanent arrangement, but Lincolns remarks are square on nonetheless. What the Republicans seek is rule when in a minority, and when in a majority the unfettered exercise of dominance, including unprecedented claims for Executive authority if the White House were again in their hands. This we learned from Dick Cheney and John Yoo. Many familiar arguments are made on behalf of the requirement of a supermajority to effect cloture, and the practice of permitting individual senators to place holds, and various parliamentary maneuvers. Against such arguments, however, is the fact that a minority uses these instruments to prevent the will of tens of millions of citizens, expressed in elections, from their part in governance envisioned in the Constitution. Our votes are stolen.
One point. Times have changed. Every senator and representative has a web site through which he or she can express views, without limit. If there are truly new, important arguments to be made, amendments to be advanced, these can be in the hands of every House and Senate office in an instant. If a modest number of the majority were persuaded that there was need to take more time, they could simply withdraw their consent to cloture. The claim that obstructive practices are required to ensure deliberation and debate, and a voice for the minority, is groundless.
How can this deliberate effort at sabotage be stopped?
Many ask: cant Rule XXIIs requirement of 60 votes for cloture be amended, or set aside? And there is a plan to attempt that at the opening of the next Congressional session in January 2011.
Despite Rule XXII, if sufficient members agreed that they would respect the wish of a majority to bring a bill or appointment to a vote, then 51 Senate votes could be converted to 60. But that appears impossible, as long as the likes of McConnell and Kyl coerce Republican senators to hew to obstruction. Could some be pried loose? Or defeated, because of their destructive intransigence?
One approach would put the question to candidates, for both House and Senate seats: If a majority of your colleagues declare that they wish to bring a bill or Senate confirmation to a vote, will you agree not to obstruct? To refrain from parliamentary steps to delay or divert that vote? And to cast your vote for procedural motions that may be required to reach that vote? Call this the Pledge to Cooperate.
Gradually a picture would emerge. Candidates for the 435 House seats and 37 Senate seats up for election in November 2010 would accept, reject, or ignore the pledge. We would soon know who stood on the side of obstruction and who did not.
Senator Blank, in 2009 and 2010, has been a chronic obstructor. If we send this chronic obstructor back to Washington, he will work to paralyze the Senate and make true bipartisanship impossible. We should thank him for his honesty in refusing to sign the Pledge to Cooperate, and retire him to tend his vegetable garden …
Is the approach just outlined sound? Would it help in making obstruction a key issue in 2010. Or would it simply gather the forces of those who really do want to paralyze the Democratic Senate and undermine the Obama presidency?
Does the language of the Pledge to Cooperate accomplish what it intends?
What organization and circulation of the Pledge would be required for this approach to be effective?
If Democrats found themselves in a minority in 2012 or 2014 or 2016, would this Pledge prevent them from—for example—withstanding Republican moves to place more ultras on the Courts? In practice, would Democratic candidates resist or refuse the Pledge just as much as their Republican counterparts?
Norman Ornstein proposes to change the rules so that the blocking minority bore the inconvenience of a filibuster and so would rarely undertake it:
For starters, the Senate could replace the majoritys responsibility to end debate with the minoritys responsibility to keep it going. It would work like this: for the first four weeks of debate, the Senate would operate under the old rules, in which the majority has to find enough senators to vote for cloture. Once that time has elapsed, the debate would automatically end unless the minority could assemble 40 senators to continue it.
An even better step would be to return to the old Mr. Smith Goes to Washington model — in which a filibuster means that the Senate has to stop everything and debate around the clock — by allowing a motion requiring 40 votes to continue debate every three hours while the chamber is in continuous session. That way it is the minority that has to grab cots and mattresses and be prepared to take to the floor night and day to keep their filibuster alive.
Under such a rule, a sufficiently passionate minority could still preserve the Senates traditions and force an extended debate on legislation. But frivolous and obstructionist misuse of the filibuster would be a thing of the past. [Note 2]
[Note 2] Norman Ornstein, A Filibuster Fix, The New York Times op-ed, 27 August 2010. Norman Ornstein is a resident scholar at the American Enterprise Institute and a co-author of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track.
[Political Design 2010.08.07. Revised 2010.08.10, adding the quote from Abraham Lincolns First Inaugural and my comment. Revised 2010.08.28, adding Approach II and the quotation from Norman Ornstein. Post A23. http://www.learnworld.com/blog/design.html]