THE COOLER

Posted in Rants on December 14th, 2009 by Ed

One of my favorite quotes from the founding era – which, like any tale of the Founders' wit and wisdom, may be apocryphal – is Washington's explanation to a skeptical Thomas Jefferson about the advantages of a bicameral legislature and specifically of a House designed for rapid action paired with a slow-moving Senate. GW is said to have asked Jefferson, "Why did you set your tea on the table before drinking it?" to which Jefferson said, "To cool it; my throat is not made of brass." Having made the point, Washington told his friend, "So it is with the legislature. The House is where we make our tea and the Senate is where we let it cool so we might drink it." I have repeated this tale to many Intro to American Government classes but I am starting to feel like both George and I are liars. The House is still where we make our tea, but the Senate is now where we send it until one of two outcomes: either 40% of the chamber decides that no one will be having tea or it gets so cold that no one in their right mind would want to drink it anymore.

The current debacle with the President's healthcare legislation should be provoking discussion about the efficacy of our legislative system overall, as it is becoming apparent that as the two parties have polarized the Senate has become an all-or-nothing game of Russian roulette in which the majority either rams legislation through the minority or a coalition of just two out of every five Senators can bring the proceedings of the entire body to a grinding halt. In other words, our government is "broken" not ideologically but institutionally; the current political realities have rendered the Senate's rules, well-intentioned and lofty they may be, ineffectual or worse.

The House is designed to produce legislation rapidly; its two-year terms and simple, majority-based rules reflect its character as an institution designed for efficiency and to reflect trends in public opinion. Public opinion being wrongheaded or dangerous much of the time, the Senate exists to apply the brakes. In other words, let's think about this for a second before we make it law. While the filibuster is not enshrined in the Constitution (and was in fact made practical by a change to the Senate rules in 1806 when the option to "call the question" or move the debate to a vote was allowed to expire) it has been an integral part of Senate practice for more than two centuries. But to what end? Aside from some southern racists' futile attempts to block civil rights legislation and Oregon Senator Wayne Morse's one-man crusade to block the Tidelands Oil act in 1953, the filibuster has been fairly invisible. But in recent years, thanks in no small part to the divisive tactics of the "Class of 1994" Republicans in Congress, the filibuster is now threatened at the drop of a hat. It is to the modern Senate what duels were to the Wild West – theoretically a last resort to redress serious grievances that became, over time, a knee-jerk reaction to any perceived slight among hotheads and drunks.

Our system is broken for two fundamental reasons: the electoral incentives for Senate obstructionism are great and the Democratic Party has no ballsack. The first point means that the less the current Democratic majority is able to accomplish, the more likely it is that voters will put the other party back in power. Gingrich figured this one out in the early 1990s. It is in the party's interest, if not the nation's, to do nothing but obstruct at every step of the way. "Those damn Democrats can't get anything done," voters will eventually conclude. The second point means that Republicans do get things done – usually idiotic, harmful things, but things nonetheless. Their leaders are willing to run through the chamber like madmen clutching a detonator, perfectly willing to destroy the institution and everyone in it if they don't get their way. So the voters drunkenly lurch back and forth between the two parties every couple of elections, trying to choose between the Democrats with the attractive policies or the Republicans with stale, ineffective ideas they will successfully implement.

In this hyperpartisan environment, even 60 Democrats (counting "Independent" Joe Lieberman) is not enough to enact the agenda of a Democratic president. Bush didn't even need 55 Republicans to railroad through his appointees, his agenda, and some very poorly thought-out legislation that in hindsight someone should have read before voting to pass. Saddled with Harry Reid and an egomaniacal "Independent" who gets off on being a necessary evil, this party simply has no idea how to lead – how to be the winners. Maybe they have become the Arizona Cardinals of politics, so used to being doormats that they don't know how to handle success when they suddenly find it. In my opinion, 60 Democrats should be enough to pass a Democratic agenda. Hell, 51 should do it. Yes, the majority in our system will always involve some measure of ideological diversity – "ConservaDems" or "Republicans in name only" – but fundamentally, simply, and crudely…it should not be this fucking hard to pass legislation with a 75-seat House majority and 58-60 Senators. We cannot suffer a system that will require either 51 Republicans or 65 Democrats to pass legislation.

So the Democrats must make a painful choice: they must alter the Senate rules and do away with the filibuster. Yes, this will inevitably mean suffering the consequences in the future when the GOP re-takes the majority. But they give the GOP everything it wants anyway. Name one thing the minority Democrats obstructed: a nomination, a major policy proposal (Social Security privatization was deep-sixed in the GOP caucus before even making it to the floor), a war…anything. If they refuse to use it in the minority, why suffer the GOP use of it when in the majority? Better to take the opportunity to pass some legislation now and accept that the GOP will break it off in the minority Democrats' ass at some point in the future than to accomplish nothing in either scenario. The Senate is for deliberation, not obstruction. It is where legislation is sent to be reconsidered, not locked in a cage and starved to death over a period of weeks.