Fix the Senate? Not Yet

Senate reformers, led by Tom Harkin, Tom Udall, and Jeff Merkley, fought an indecisive first round on fixing the Senate rules this week. The official outcome -- some very modest tweaks, plus a commitment by the leadership of both parties not to change Senate rules by a simple majority for the next four years -- look like a defeat. But there has been a marked change in the chemistry of the Senate. The idea of a single senator being able to hold off action with a secret hold, and the idea that everything ought to take 60 votes to pass -- are being challenged by a significant, if as yet inadequate, block of senators.

The crucial vote was on the proposal by Senator Merkley to require senators who want to kill a bill with debate bill to actually filibuster -- if they claim they want more debate, make them debate. This would not end the practice of a minority being able to block legislation -- but a minority could not longer prevent discussion. It failed, 49-46.

(Under the arcane Senate rules, on Thursday it would have taken 67 votes to be adopted. But later in the year it might take only 60. And in theory 51 could do it, although Reid and McConnell both agreed to rule out following the Constitution by allowing a simple Senate majority to set its own rules.)

Not a single Republican voted to require actual debate -- and Democratic Senators Baucus and Levin joined the Republicans. (Democrats Feinstein, Kerry, and Inouye were not present.) An earlier vote on Senator Tom Udall's effort to require actual debate, as well as other reforms, fell even further short, with Democratic Senators Kohl, Reed, Webb, and Pryor joining the Republicans along with Baucus and Levin.

In the most astonishing gallery of shame are the four Republicans who voted against the elimination of secret holds -- the one significant reform in the actual rules that was adopted. Senators DeMint, Lee, Ensign, and Rand Paul actually voted to preserve the right of a single senator to hold up a nomination or other Senate business secretly.

Since all four of these senators belong to the Tea Party caucus in the Senate, it's somewhat astonishing to imagine what James Madison would have made of their behavior. Here's Madison on the general principle of allowing a minority to prevent action:

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

One can only imagine his reaction to the idea that a single senator could block action by the majority. Even in the Polish parliament, where such a rule prevailed for the century before Poland vanished from the map of Europe, the victim of minority sabotage, the member of the Sejm who wished to object had to identify himself!

So given this outcome, why did I say Round One was only "indecisive"? Because the old guard in the Senate -- on both sides of the aisle -- were put on the defensive, forced to admit that there is a problem with how the Senate functions, and had to make promises they would reform. Here's a sample from the conversation:

Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) retreated for two weeks and returned with a compromise, announced Thursday. McConnell will limit the GOP's use of the filibuster on initial, motion to proceed, votes. Reid agreed to "exercise restraint" on amendments, making it easier for Republicans to file their own. The two senators said neither would pursue what's known as the "constitutional option" -- or "nuclear option" -- to attempt to change the rules by 51 votes, rather than 67 votes.

Such gentlemen's agreements are ultimately no safeguard for genuine democracy, nor are they a substitute for a commitment to majority rule. And it's shameful that all the Republicans, plus Baucus and Levin, both chose their personal leverage over the nation's future, just as the Polish nobility did in the eighteenth century. But the spotlight has begun to shine, and if we keep raising its intensity, we might actually, over the next two years, create a Senate that meets our needs -- and fulfills the commitment of the founding fathers to "a more perfect union."