Playing by Polish Rule

This post is long -- but it's one of my most heartfelt, so I hope you'll bear with me.

As I write this, the Senate Committee on Environment and Public Works has begun deliberation on the Clean Energy Act, the major omnibus climate and energy bill that Committee Chair Barbara Boxer has been working on for months. The committee almost didn't meet, because Oklahoma Senator James Inhofe, the ranking minority member, chose to boycott the markup and claimed that this should prevent work from proceeding. Boxer decided otherwise, but the Republicans are boycotting anyway.

Inhofe's stunt is simply the latest evidence that the United States has slipped without any amendment to our Constitution into a lethally weak political system like the one that took Poland from being a major power to impotence and, eventually, national extinction in the 18th century.

I call this system "Polish rule." It's not minority rule, in which public officials representing a minority govern. The United States was under minority rule for most of its history, until female suffrage in 1921. But the government was not paralyzed -- because while minority rule may be unfair, the government can still make decisions.

In Poland, it was called the "Liberum veto." Any member of the Sejm (the Polish Parliament) could block action on any item. From 1669 onward, the Sejm was disrupted more and more frequently by deputies exercising this veto, often at the behest of foreign powers such as Russia and Prussia. Shortly after a terrified nation repealed the Liberum veto in 1791, Poland's neighbors took advantage of the weakened nation to partition it. Poland ceased to exist until after the First World War.

Polish-rule tactics now govern Washington. The primary one is the "procedural filibuster." It enables a single senator to bring the Senate to a halt by refusing to give unanimous consent for the Senate to proceed. Only if 60 senators vote to cut off debate can legislation resume progress. There is no need for the recalcitrant minority to actually filibuster -- they just need to not show up and vote, since an absence counts as a vote to prevent proceeding with legislation.

The procedural filibuster was an inadvertent result of a 1975 compromise that was intended to make breaking the real filibuster easier. And for years after 1975, it had more or less that effect -- filibusters remained rare.

But in 1993 Republican Majority Leader Bob Dole decided to use these rules to convert the Senate from a majoritarian body with occasional filibusters to a body in which forty senators, representing as little as twelve percent of the nation's population, could prevent any action. He did this by persuading the Republican minority in the Senate to act as a parliamentary block -- a direct challenge to the design James Madison and the Founding Fathers had in mind for the Senate. Dole's goal was quite explicit -- delegitimize the Clinton administration by making the country impossible to govern, just as 18th century Poland had been.

1993 was the Sierra Club's -- and the nation's -- first encounter with Polish rule in its full flower. As the 104th Congressional session wound to an end, with Clinton's program blocked in the Senate, one remaining bill hung in the balance -- the California Desert Protection Act. In any previous Congress, this bill, which was a California-only wilderness act that had support from both of the state's senators, would have sailed through. But owing to Dole's new principle, it was filibustered. Party strategy now trumped senatorial courtesy. On the final day of the Senate, environmentalists finally managed to round up the 60th vote -- Senator Bennett Johnston of Louisiana -- and the desert was protected. But the rest of the environmental agenda from that Congress -- Superfund reform, mining-law changes, other public lands acts, renewal of the Endangered Species Act, Cabinet status for the EPA -- lay in ruins.

When George Bush was elected, Democrats used the filibuster more often than the historical norm -- but it never became the ordinary course of business. When Barack Obama was elected, however, the Republican minority returned to Dole's now fully burnished suite of Polish-rule tactics. Not only would the procedural filibuster be used but also the art of blocking the confirmation of Presidential appointees by a single senator placing a "hold" on the nomination. During the first year of the new Administration, these holds sprouted like weeds. Nominees were routinely blocked -- even when the minority agreed they were well-qualified -- as a form of blackmail to force the Administration to change Executive Branch policy.

Now we see Inhofe finding another lever to prevent the Senate from doing the public business.

Returning the Senate to majoritarian rule is, in my view, the most important challenge facing the country. The Republicans must not be allowed to use obstructionism to overturn election results -- they lost in 2008 when the country voted for change. Now they are successfully blocking that change, and they should be held accountable

But so must the Democrats. If all 60 Democrats in the Senate were to unite (indeed, if only a majority of them did) and make a commitment  not to allow obstructionism to govern any longer, then they could regain control of the chamber. My friend Andy Stern has pointed out that "there is no such thing as a Republican filibuster." The most controversial recent filibuster threat came not from a Republican but from Independent Joe Lieberman, who caucuses with the Democrats. It's interesting to recall that it was only 15 years ago that Senator Lieberman decried the filibuster as a symbol of what was wrong with Washington -- and wanted to reform it.

If Democrats want to insist on letting senators vote, then they have the votes. It will take discipline and fortitude, but it can be done. But restoring democracy to the Senate must be a higher priority for at least 51 of them than retaining their own personal Polish-rule veto over legislation that they don't like. It was the notion that every member of the Sejm was too important to be overruled by the majority that led Poland down the path to partition. Today, that idea flourishes deeply and widely in the U.S. Senate -- on both sides of the aisle. Senators need to stop thinking of themselves as Polish aristocrats and start behaving like public servants in a democracy governed by a constitution -- not the rules of a private club.