Just how broken is the Senate?

By Alan Shapiro

To the Teacher:

The U.S. Senate is increasingly dysfunctional. Among the reasons, which we consider in the first student reading below: anachronistic rules and organization, laxity, endless fundraising and meetings with lobbyists, the use of delaying tactics, and rabid partisanship. The second student reading provides an overview of cloture and the filibuster. Questions for discussion and a writing and citizenship activity follow.

See also "The Senate Filibuster & Democracy" in the high school section of
www.teachablemoment.org for an introductory exercise (a simulated student filibuster), two readings that provide more information about the 60-vote cloture requirement and background information on the history of the filibuster, and a writing & citizenship assignment. You might also find helpful an article in the Nation by Senator Tom Harkin, "Fixing the Filibuster," (7/19-26/10).

Student Reading 1:
Presiding over the Senate with nothing to preside over

Who's listening?

What do you know about Senate Rule XXVI, Paragraph 5? Probably nothing. Almost all other Americans share your ignorance.

The rule requires unanimous consent of senators to hold a committee hearing after 2 p.m. while the Senate is in session. The supposed reason for the rule is to make sure that the lawmakers are in the Senate chamber during a legislative discussion and not involved in committee work. But ordinarily, senators of both parties agree to waive the rule. Why?

George Packer explains: "In general, when senators give speeches on the floor, their colleagues aren't around, and the two or three who might be present aren't listening. They're joking with aides, or e-mailing Twitter ideas to their press secretaries, or getting their first look at a speech they're about to give before the eight unmanned cameras that provide a live feed to C-SPAN2."

Meanwhile, whoever is presiding over the Senate "sits in his chair on the dais, scanning his BlackBerry or reading a Times article about the Senate. Michael Bennett, a freshman Democrat from Colorado, said, 'Sit and watch us for seven days--just watch the floor. You know what you'll see happening? Nothing."

Recently, Senator Carl Levin, a Democrat, scheduled a meeting of the Armed Services Committee, which he chairs, to hear testimony from a general and an admiral who had flown to Washington to discuss military issues. When Levin asked for unanimous consent for the committee to meet, the only other legislator present in the chamber was Republican Senator Richard Burr, a member of the Levin committee.

"I have no personal objection…," said Burr, but "there is an objection on our side of the aisle. Therefore, I would have to object." The reason was that later that day the Senate was to vote on a final version of the health insurance bill. "Republicans, who had fought the bill as a bloc, were in no mood to make things easy," writes Packer. (New Yorker, 8/9/10)

Delaying tactics and a 3-day workweek

Packer's article, "The Empty Chamber: Just how broken is the Senate?" offers a detailed answer to the question the title poses. Examples:

• Senators often submit amendments to legislation whose purpose is either to delay passage of the legislation for as long as possible or to score some political point, or both. For instance an amendment submitted during the health insurance debate aimed to "insure that veterans diagnosed with mental illness would not be denied the right to own firearms." (Republican Senator Tom Coburn of Oklahoma)
  
  
• The typical senator's workweek includes "staff meetings, interviews, visits from lobbyists and home-state groups, caucus lunches, committee hearings, briefing books, floor votes, fund-raisers. Each senator sits on three or four committees and even more subcommittees, most of which meet during the same morning hours, which helps explain why committee tables are often nearly empty, and why senators drifting into a hearing can barely sustain a coherent line of questioning."
  
  
• The Senate has an unwritten rule that votes should not be scheduled for Mondays or Fridays. This gives senators a 3-day workweek that enables their "endless fundraising" and gives them time to spend an hour at least once a week at a site outside the Senate office buildings where they can make fundraising calls for their party. They are prohibited from raising money in their own offices. (Senator Dick Durbin, Democrat of Illinois, commented in an interview with Bill Moyers that during the banking crisis "that many of the banks created" they remained "the most powerful lobby on Capitol Hill. And they frankly own the place."
  (www.pbs.org/moyers/journal, 4/27/09)
  
  
• One Senate rule makes it possible for just one member to put a "hold" on presidential appointments. This has been used to hold up 56 Obama nominees for government positions and another 44 Obama nominees for judgeships. A "hold," writes Packer, is "a courtesy extended to senators in the days of horse travel, when they needed time to get back to Washington." Numerous other old-time Senate rules no longer serve their orginal purpose but are now used as delaying tactics.
  
  
• One senator recently insisted that all 767 pages of an amendment be read aloud.

Packer's article also describes the gradual disappearance of friendships and a culture of accommodation among Democrats and Republicans.

For discussion

1. What question do students have about the reading? How might they be answered?

2. Why do you think Senator Burr prevented a Senate Armed Services committee meeting to hear from a general and an admiral about military issues?

3. Explain the reason(s) for each item in a typical senator's workweek.

4. What devices do senators use to delay Senate action? What reasons do senators have for them?

Student Reading 2:
The rise of cloture and the threat of filibusters

In 1917, President Woodrow Wilson convinced the Senate to pass Rule XXII, which provided for "cloture," a two-thirds majority vote to end debate. Its purpose was to make it more difficult for senators to engage in a "filibuster" -- that is, holding the floor with endless talk to prevent passage of legislation they opposed, but the majority support.

Between 1919 and 1971 there were 49 cloture votes. Their number increased by the eighties, which led to a Senate decision to require 60 votes for cloture. But after Republicans lost the Senate majority in 2006, they set a new record of 112 cloture votes in 2007-2008. Through other obstruction devices, they have prevented 372 bills passed by the House from even being debated in the Senate.

A strict party line vote in the U.S. Senate today results in a 59-41 majority for the Democrats (57 party members and 2 Independents who caucus with the Democrats). This means that despite a substantial majority, Democrats fall one vote short of being able to invoke cloture. A united minority of 41 Republicans can prevent cloture and bottle up legislation they oppose--even if the majority supports it.

Even if cloture succeeds, post-cloture debates can take up to 30 hours. Multiply by 30 each of Obama's 44 unconfirmed judicial nominees. Or multiply by 30 each of the Senate's 372 unpassed bills. Assuming that the Senate did no other business and worked around the clock, how long it would take to decide on those judges and bills?

Democrats and Republicans do cross party lines at times. But Democratic leaders in today's Senate have repeatedly learned that they do not have 60 votes to pass a bill--even though they hold the majority.

Might Congress change its rules so that the majority can again pass bills? The Constitution states: "Each house may determine the rules of its proceedings….(Article I, Section 5)

When the new Congress begins in January, Senator Tom Udall, a New Mexico Democrat, intends to offer a motion that the Senate adopt rules by a simple majority. This would make it much easier for a Senate majority to change cloture, filibuster and other rules, but that will not happen without a fight.

In the meantime, Packer concludes:

"Financial regulation and health care required a year and a half of legislative warfare that nearly destroyed the body….Two days after financial reform became law, [Majority Leader] Harry Reid announced that the Senate would not take up comprehensive energy-reform legislation for the rest of the year. And so climate change joined immigration, job creation, food safety, pilot training, veterans' care, campaign finance, transportation security, labor law, mine safety, wildfire management and scores of executive and judicial appointments on the list of matters that the world's greatest deliberative body is incapable of addressing." (New Yorker, 8/9/10)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What is cloture? Why does the Senate have cloture votes? What happens if a vote to approve cloture succeeds? What if it fails? What is a filibuster? What is the connection between cloture and a filibuster?

3. Why has the Senate not taken up a lengthy list of pending legislative items?

4. How long would it take to confirm each potential judge? Each unpassed bill?

5. How might Senate delaying rules be changed? What competing points of view would be likely in a debate to change them?

For writing, discussion and citizenship

Assign students to draft a well-developed letter to each of their senators based on one or more of the issues or questions the class discussed on this issue. Have students discuss their drafts in small groups and select the best in each group, read it to the class, and discuss it.

Assign students to revise all the drafts and submit them to the teacher for comments and perhaps further revisions. Then mail the letters. Answers from senators might fuel further discussion, perhaps further letter-writing or even a visit to the senators.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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