On April 16, the Senate will reject a bill that would enact the Buffett rule mandating that Americans with a million dollars or more in income pay a minimum of 30% in taxes. This will be done without the bill ever receiving a simple up and down vote on the Senate floor.
How is it possible that legislation can die without ever receiving a direct vote? Gross manipulation of Senate rules.
On the 16th, the Senate is scheduled – brace yourself – to vote on whether to vote on whether to debate the Buffett rule legislation. Because this is a procedural vote forced by Senate Republicans on whether to cut off prior debate, it needs 60 votes to pass, which the Buffett rule does not have. If it were a traditional up and down vote, it would need 51 votes, and the legislation would be passed.
This is only the most recent example of dysfunctional rules in the Senate preventing not merely smart policymaking, but any policymaking whatsoever. A group of Senators will block even debate on legislation from beginning.
It is popular to attack our elected officials in Washington as incompetent. It may be the closest thing to a truly universal idea in the United States: Republicans’ and Democrats’ derision for Congress is equal according to recent polling.
However, as the above anecdote demonstrates, this anger is misdirected. Instead of attacking the politicians in Washington themselves as the source of incompetent policymaking, the American voter should recognize Washington’s institutions – particularly the Senate – as dysfunctional and as the underlying cause of our contemporary political ills.
Without effective governing rules and norms under which to work, even the most competent elected official can be brought to his or her knees. For example, if the norms of the Senate dictate that it be in session for only three days a week – as they currently do – the most hard-working freshman Senator can do little to make a difference.
Even worse, if the rules governing parliamentary procedure in the Senate force legislation to receive 60 votes for passage rather than the Constitutionally-mandated 51 votes – as is now the case thanks to the abuse of the filibuster – legislating effectively is impossible.
The rise of the 60-vote Senate is conceivably the most detrimental development in American politics in the last two decades. Although abuse of other Senatorial rules has grown (e.g. the use of secret holds; blocking presidential nominations for reasons unrelated to the nomination), the explosion in the frequency of filibustering deserves singling out.
The Senate was designed to be a body where a simple majority of votes was all that was required to pass legislation. James Madison, in Federalist #58, argued explicitly that demanding more than a simple majority to pass legislation would be unreasonable and make governance impossible. “It would be no longer the majority that would rule,” Madison wrote. “The power would be transferred to the minority.”
The power today has been transferred to the minority. For the last two decades, both parties have abused the filibuster to block legislation that otherwise would have passed. According to UCLA professor Barbra Sinclair, about 8% of major legislation faced filibusters in the 1960s – the decade of the civil rights movement, the Vietnam War, the Great Society, and other radical reforms. In the past decade, on the other hand, roughly 70% of major bills were filibustered.
Allow me to again emphasize the importance of a sound structural legislating system, and thus just how crucial the rise of this roadblock to legislating is, through analogy. If your teacher or boss asks you to do something, but creates absurd obstacles to you doing so, it should be obvious that you are not the one who should be blamed for a failure to succeed. In Washington, in turn, our elected officials should not be blamed for failing to legislate optimal policies when the rules governing legislating are absurd.
If Senatorial rules and other parliamentary procedures are the true impediment to good governance, rather than incompetent legislators, the path for reform should be clear: rewrite Congress’s rulebook. Allow me to suggest the core of such a reform: the abolishment of the filibuster.
It is sometimes argued that the filibuster promotes moderation by forcing the majority party to compromise to gain minority party votes. Eliminating the filibuster, under such a line of thinking, would lead to even worse policymaking.
The opposite is in fact true: the filibuster promotes extremism by encouraging bloc voting in the minority. If the majority party in the Senate has 55 members, the minority party can solidify and vote to filibuster a bill solely to embarrass the majority party.
If, instead, the minority party cannot block a bill via filibuster, they have little incentive to vote against the legislation since their protest vote will mean little. Instead, the minority will be incentivized to work with the majority on the bill so that the majority can claim a bipartisan victory and the minority can ensure that at least some of its interests are protected.
Until we have such reforms, criticizing elected official officials in Washington will be attacking the symptom, rather than solving the underlying problem of dysfunctional policymaking.