The Long, Slow Death of the Senate

The filibuster reform threatens to make the Senate go the way of the House, as Congress continues to fall apart.

In 1973, when Minnesota’s liberal Democratic senator Walter Mondale wanted a seat on the Senate Finance Committee, he sought help from Mississippi’s old bull senator, James O. Eastland, who despised just about everything Mondale stood for. Eastland smiled at the irony of such a request from such a political opponent, and then answered with a single word before walking away. "Yup," he said, and Mondale got his Finance seat.

That was the old Senate, when it was understood that the role of that august chamber was to act as a bulwark against flighty or ill-considered governmental action. Since 1806, Senate rules had been designed to make it difficult to get legislation through the chamber, and the result was that collegiality and cooperation had to transcended ideology or partisan impulse. That led to the Senate’s famous elaborate courtesies, the political patience and perseverance, the institutional reverence, and the understanding that all these things, along with the complex procedures of the chamber, served to protect small states and minority interests from any possible predations of the majority.

That’s how a Jim Eastland could go out of his way to foster the institutional ambition of a Walter Mondale. Eastland knew the day would come when he would need to turn to a man even as far removed from his own outlook as the Minnesota senator. In a chamber like the Senate, designed to thwart all but the most thoroughly considered actions, such cross-ideological cooperation was a necessity.

And the single most important senatorial institution cementing this sensibility was the filibuster, the requirement that a supermajority was needed to clear procedural hurdles to consideration of matters such as legislation or confirmation of executive nominees. This has been the keystone of the Senate as institutional bulwark against governmental encroachment. The Senate was never designed to run on pure power, and the filibuster ensured that it would not succumb to such a dangerous approach.

Now the Senate majority leader, Nevada’s Democratic senator Harry Reid, has dealt a serious blow to the filibuster—and to the Senate’s traditional institutional ethos. Employing a simple majority, he has eliminated the filibuster for the confirmation of judges and executive nominees (though not, the majority leader insists, for Supreme Court nominees).

The institutional consequences are going to be immense. The Senate likely won’t survive in its crucial institutional role, which is to ensure that actions taken by our increasingly powerful and intrusive federal government must get serious and extended deliberation before they can become law. Already the House of Representatives has been destroyed as the institution it was designed to be—the "first alert" system for Washington lawmakers who need to know what new political sentiments are welling up within the polity, out in the country. It served this valuable function through the two-year term and the need for House members, for the sake of political security, to keep their ears to the ground to detect political rumblings emanating from their districts.

But now, with redistricting abuses creating districts so safe and secure that lawmakers don’t have to worry about what the opposition party may be doing or saying, this "first alert" function no longer applies. And, with the only danger facing lawmakers coming from the fringes of their own parties, this has served to push legislative politics further and further to the extremes, thus rendering the House even further removed from the true sentiments emerging from within the broad electorate. The first-alert system no longer works.

This is an institutional tragedy. And it is compounded by the fact that districts these days, unlike in the old days, slice through broad political subdivisions such as cities, counties and townships. When districts were designed to encompass full subdivisions, members of Congress had to listen and respond when they received calls from mayors, county executives and city council members. Now that tight tie between members of Congress and local power centers has been severely attenuated, and members of Congress become all the more roguish in their political behavior.

And now the filibuster also is under mortal threat, which means the Senate’s traditional role is also threatened. This is not to say the filibuster had not become problematical. Until the mid-1970s, it was a rarely used tool whose power was seen more in the threat of its use than in its actual employment. But then Walter Mondale, who like most liberals hated the filibuster, initiated an assault on the institution in 1975. That’s when the old two-thirds rule was whittled down to the current sixty-vote rule.

But, like many "reforms" from well-meaning people, it had unintended consequences. When the filibuster barrier was whittled down, it soon was used more and more often. Then, as Senate leaders responded to this increased use by simply shelving the filibustered legislation for a time, it became institutionalized. That’s how we got to the current state of affairs, whereby no legislation can proceed without sixty votes to clear away procedural hurdles. In the old days, if you wanted to filibuster a bill, you had to stand there on the floor of the Senate and hold your position until you dropped—or gave up. That’s the old filibuster of Senate lore—and movie lore—when senators such as South Carolina’s Strom Thurmond, armed with throat lozenges and catheters, held forth for up to twenty-four hours.

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