Why the Senate Can't Resist Dysfunctional Obstruction

The rules of Congress' upper house are different from those of any other parliamentary body -- and that's what caused this week's filibuster standoff.
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So let's talk about filibusters, obstruction, and the Senate in light of the 11th-hour deal on Tuesday that averted a midstream rules change by majority Democrats and a threatened Defcon I by minority Republicans over blockage of a slew of executive nominees.

First, a broader point. The United States Senate is unlike any other parliamentary body in the world. It has rules like the others, it has structure like the others, it has partisanship like the others. But it is less reliant on strict rules and less structured than any others. The Senate runs on unanimous consent for almost everything it does, and it's more of a delicate organism than a well-oiled machine. For the Senate to function, it needs comity, and to function well, it needs all of its members -- all of them -- to cooperate.

The rank-and-file members of most parliamentary bodies are cogs in the machine; some are bigger and more powerful than others, but individual cranks, lunatics, obdurate asses, showboaters, and recalcitrants become minor annoyances who can largely be ignored or steamrolled.

The individual members of the Senate are not so easily dealt with. Those who want to be (to use the more polite phrase) skunks at the garden party can divert and block the Senate in many ways, even if a majority of members and even leaders object. By denying unanimous consent, taking and holding the floor, turning some of the looser rules on their heads, and, especially, stepping in at critical times at the end of sessions to block action when time is precious, individual senators can wreak havoc -- and, sometimes, get their own way.

If the Senate is to play its part in solving problems, this dynamic requires that senators find ways to work together, to keep their partisan bents from spilling over, to limit the damage that can come when many individual senators decide to bollix up the works. That means the norms of the Senate are more important than the rules.

And that is where the Senate has broken down in an unprecedented way over the past six years or so. The rule of the Senate that has regulated debate and provided for a way -- cloture -- to stop debate with a 60-vote threshold is Rule XXII. It was last amended in 1975. It worked pretty well for 30 years. Of course, there were times when majority leaders were frustrated by minority actions -- more often by rogue individuals than minority leaders -- and the roles did switch when majorities, and presidents, changed. The rule did not change in 2005, when Democrats in the Senate blocked confirmation for a series of President Bush's Appeals Court nominees, leading to Majority Leader Bill Frist's threat to change the rules by majority vote, and a last-minute compromise by a "gang" of 14 senators, seven from each party, to enable most of those nominees to be approved and the Senate to resume normalcy -- which did not last even two years.

And the rule did not change in 2007, when Democrats recaptured the Senate, or when Barack Obama became president in January 2009. But the norms did. As anybody paying the slightest attention over the past few weeks knows, we have gone from the era when Senate Majority Leader Lyndon Johnson faced one filibuster during his tenure to Majority Leader Harry Reid facing 400 cloture votes on issues and nominations to try to end debate and move to action.

True, cloture votes are not identical to filibusters (and "filibusters" these days, with the sole exception of Rand Paul's 12-hour spiel on the floor recently, are not really filibusters, just actions that raise the bar from a majority vote to a supermajority requirement). And Reid filed some of the cloture motions preemptively -- often followed by the majority leader "filling the amendment tree" to deny the minority any amendments. But cloture motions are the best rough indicator of the main tactic to obstruct in the Senate, and it is crystal clear that what we have now is dramatically different from what we have had at any time, ever, in the history of the Senate.

The use of holds -- individual senators denying unanimous consent on a nomination or bill, making clear they will filibuster if the nomination or bill is brought forward -- has mushroomed. The threat of filibuster, and the requirement for multiple cloture votes on bills and nominees that are entirely uncontroversial -- all to take up precious floor time and delay or obstruct outright -- is new and different. It has become a partisan tactic of the minority party, an in-your-face set of gestures that have upended the delicate balance and blown up the norms.

This has been true on both legislation and nominations, but especially striking on nominations -- and in another unprecedented way, on executive nominations. In many instances, the issue was not the nominee's qualifications, but the desire to block an agency or bureau from functioning at all or from implementing the law -- what Tom Mann and I have called "the new nullification."

That is what led Harry Reid to make clear that he and the Democrats would change the rules for executive nominations to a simple-majority requirement. This time, no formal gang of senators got together, but John McCain, who understands the Senate and is a problem-solver more than a partisan warrior, found a way forward, at the 59th minute of the 11th hour.

The deal fundamentally gives Democrats, and the president, everything they wanted on executive nominations. Normalcy, for the moment, is restored. But if the larger web of norms that has governed the Senate is not at least partially mended -- meaning, not just the diminution or elimination of unwarranted blockage of executive nominees but a reduction in the use of the Senate's weapons of mass obstruction over judicial nominations and the routine requirement of supermajorities for all bills -- the delicate organism of the U.S. Senate will be damaged again, and we will be back to confrontation. It will help if Reid continues to be more open on allowing minority amendments. But the real determinant of what kind of Senate we have, the big ball, remains in Minority Leader Mitch McConnell's court.

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Norm Ornstein is a correspondent for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research.  More

Ornstein served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future; The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann; and, most recently the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann.

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