The Senate After 2008

Let's assume that there is a tremendous victory in 2008 for the Democrats. That is, a Democratic president and a Democratic majority in both houses of Congress. This sounds great, but what does it actually mean for the country?

The prognostications that I've seen do predict a Democratic victory, but without much change in the House, which is already in Democratic hands, and with at most four new Democratic seats in the Senate. It is this last prediction that bodes ill for the nation.

In the Senate, any senator of either party can require a 60% vote for clôture before ending debate on a bill. Since (obviously) debate must end before the bill can be voted on, this means that any senator can delay any bill in this way. If it were a matter of a traditional filibuster where a small minority of senators decided to hold up the vote, the 60% clôture procedure would be beneficial. However, what we have seen in recent years is the emergence of a new habit whereby the minority party, as a block, uses the filibuster/clôture procedure to prevent action by the Senate. That is, the minority party, even though it would lose in a straight up-and-down vote, can prevent bills from becoming law whenever they want to.

During the current term, this problem is not as great as it may become after the 2008 elections. In this term, the Republican minority in the Senate can, and does, block most legislation. The only way past them is by pandering to them, compromising strong Democratic programs to the point where (1) they may no longer fulfill the purpose for which they were intended, and (2) they may become so distasteful to House Democrats (who do not have the filibuster/clôture process), that it no longer can pass the House. However, even when the bill does pass both houses of Congress, unless it is truly bipartisan (and therefore usually weak), the President will veto it, so 'twas all for naught.

In the post-2008 world, however (assuming a Democratic sweep), the filibuster/clôture problem will become acute. Even if the Democrats pick up all four seats, there would be 53 Democrats, 2 Democrat-leaning independents, and 45 Republicans. This is nowhere close to the 60 votes required by the filibuster/clôture process, even on bills that Lieberman supports.

Therefore, the public will have spoken overwhelmingly that they want a Democratic government, that they support the Democratic program. Yet, when it comes to passing legislation (and also, certain Executive Branch appointments), the minority party in the Senate will be in position to derail that program.

The problem is exacerbated by the relative unruliness of the Democrats. They are less likely to vote en bloc, and this already weakens the Democratic majority as a cohesive force. However, it is the Senate's filibuster/clôture procedure that will create the largest problem.

This state of affairs has several consequences. For one thing, we should be asking our Democratic presidential candidates how they will deal with this issue. There are basically two ways to do it: (1) compromise with the minority party, or (2) hold the minority party up to public shame for obstructing the will of the people. I think that both methods could work, depending on the goals of the moment, but I confess that the "public shame" approach does appeal to me. However, for it to work, there must be unity among the majorities of both houses and the Whitehouse. That is, the onus of explaining why the Senate minority is working to prevent the implementation of the will of the people must be put squarely on them. Furthermore, the majority must be damn sure they've dotted all the i's and crossed all the t's. Making a big push like this for poorly written, pork-filled legislation would backfire tremendously.

Another consequence is that the voters will probably not get what they want. There probably will be gridlock once again in Congress, and, if past history applies, the Democrats will be blamed for it. This is something that must be discussed up front, during the election debate. The voters must understand the dynamics of the situation, and the candidates must address the issue of how their program will fare as a result. This will probably dampen the enthusiasm of voters, but at least they will know what they are voting for.

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