The ”mom” in me is often tempted to give the entire Senate a “time-out.” But Senate historian Donald Ritchie reminded me that the Senate isn't really behaving badly. It's just behaving like the Senate.
“It’s not dysfunctional. They are functioning. They just aren’t functioning in a pretty way,” he told me in a conversation this week.
Before calling Ritchie, we rummaged around the Senate web site for a filibuster refresher. Until 1917, the right to a limitless debate was just that: Limitless. Filibusters were unstoppable, as Henry Clay learned in the 1840s. Prodded by President Woodrow Wilson, who wanted a vote on the Treaty of Versailles after World War I, the Senate created what we now recognize as the cloture vote. Only in those days it didn’t require 60 votes to cut off debate or overcome procedural objections as it does today. It required 67.
It wasn’t easy to get two-thirds of the Senate to agree on anything, so cloture votes were rare. Filibusters -- good old fashioned stem-winding filibusters by the likes of Huey Long and Strom Thurmond -- were not common but they persisted right up through the famous (infamous?) ones of the civil rights era.
Yet, Ritchie said, in those days there was more comity in the Senate. More bipartisanship. More heterogeneity within the two major parties. Republicans and Democrats both had liberals and conservatives. Coalitions to pass legislation were made across party lines.
“The two parties were different than they are today. Almost all the votes were coalition votes,” Ritchie said. When cloture was filed in those days, he said, sometimes it was the majority and minority leaders jointly opposing factions in their respective parties.
In 1975 the Senate changed its rules. Cloture, or the supermajority, now required only 60 votes, not 67. And filing cloture, as the chart shows, became more common. Since George Mitchell led the Senate Democrats in the late 1980s, Majority Leaders of both parties have used them routinely to test support for a bill or provision, and to thwart obstructionist tactics used by whoever is in the minority. And even when a cloture petition is not formally filed, the 60 vote calculus (never mind the one-Senator hold) is implicit in any political calculation. The old-fashioned filibusters more or less died out. A filibuster is no longer a marathon speech, but simply any opposition that prevents a 60 vote supermajority. And by that definition, Ritchie said, there could be a filibuster “even when the opposition party hasn’t said a word about the bill.”
But Ritchie pointed out that those (in the health reform debate and elsewhere) who clamor for Majority Rule -- not Supermajority Rule -- may not fully understand the historical and constitutional roots of the Senate.
“The Senate is not a majoritarian body.” The House is. Not the Senate.
The Constitution explicitly spells out three circumstances where a Senate Supermajority is required (impeachment, treaty ratification and overriding a presidential veto). In addition, as you may recall from eighth grade, the Senate’s composition isn’t democratic in the sense that the House’s is. California, with its 36 million people, and Wyoming, with its half million, each has two Senators. California has 53 House members, Wyoming one. Looking at it another way, half the U.S. population lives in 10 states and has 20 Senators. The other half lives in the other 40 states, and has 80 Senators.
As far apart as Joe Lieberman and Bernie Sander might seem, their differences pale besides some of the splits in the precivil rights era. On most issues, party members stick together. “Most of the Democrats are actually together. Most of the Republicans are actually together,” he said. “There’s a smaller center than there used to be.” (Ritchie and I didn’t talk about this much, but the rise of the cloture vote and the political polarization -- including the fights over judicial nominees -- also has intensified since Roe v. Wade.)
The party polarization nowadays means that just about everything big needs 60 votes -- and health reform is certainly big.
“Legislative tactics have changed,” Ritchie said. And that’s one reason that the health reform bill is more than 2000 pages long. Lots of bills nowadays are very long, he pointed out. Because every controversial idea has to meet that 60 vote test and the lengthy procedural hurdles, lots of provisions get bundled into bigger and bigger pieces of legislation, whether it’s omnibus spending bills or an enormous health reform initiative affecting everything from midwifery to hospice. (The advent of word processing -- rather than typewritten revisions to legislation -- also lengthens the debate, because on the computer, it’s easier to revise and add to a bill. And revise. And add. And revise a bill, he pointed out.)
All this helps explains why that cliché about sausage-making (coined in 19th century Germany) persists. Legislation is very, very messy.
“A lot of good ideas wind up on the cutting room floor. Legislation is about consensus and compromise.” And every bill, as President Obama noted this week, is a compromise. Not everybody gets everything they want. Or rather as Obama said, nobody gets everything they want.
“Every bill is a compromise to some degree,” the historian said. Both sides are unhappy to some degree. But once a bill is enacted, it can evolve. Big change happens, and then it’s followed by smaller changes, as occurred with both Social Security and Medicare. (Prohibition, he reminded me had a different fate.)
The Office of the Senate historian is nonpartisan and Ritchie can’t comment on the content of legislation, nor predict its outcome. But he can appreciate when he’s witnessing history. Health reform has been on the national agenda to a certain extent since Teddy Roosevelt and the Progressive era, and in a more vigorous and tangible way since Harry Truman.
Passage isn’t the end of the story. Implementation counts. As does national consensus. Usually, consensus grows. (Again -- Prohibition was an exception). People get used to the new ideas, or accept the inevitability of change.
During debate, on both sides of any issue make all sorts of scary and dire predictions about what will happen if a bill does or does not pass. “But the world never comes to an end,” he said.
It might even get better.