Our assignment in this symposium is to explore the role that legal issues play in what is popularly known as "gridlock" in Washington. I am tempted to declare the symposium over by arguing that there are no such relevant legal issues--that our problems are really political and ideological, not stemming from any legal or constitutional deficiencies. But that would be too easy. There are legal defects which contribute to our current frustration, even if we may ultimately conclude that they are symptoms and not causes of gridlock. It is certainly true that the federal government is in a period of extreme dysfunction. (1) We see it in conflicts between the President and the Congress over appointments and long range fiscal policy. We especially see it in the inability of the House and Senate to cooperate on urgently needed legislative priorities. Year after year, budget resolutions and appropriations bills are not passed in a timely fashion, and often not at all. (2) Measures dealing with major public issues die in the Senate. (3) I want to focus in this paper on one of the most talked about elements of gridlock, the use of Senate rules and practices by the minority to block virtually any action unless it is supported by sixty senators. In the public discourse about paralysis in Washington, dysfunction in the Senate may be the most frequently cited cause. Some commentators have even suggested that the Senate now operates as a "vetocracy," (4) and others like Mann and Ornstein have observed that changes in the Republican Party have brought about a laser-like focus on obstruction rather than cooperation on legislation. (5)
This is not the place for a deep analysis of the underlying causes of our political dysfunction. But there is agreement on some points. Rarely in our history have the two parties been more polarized. (6) In the Republican Party, zealots have eliminated the traditional moderate-to-liberal legislators, (7) and to a lesser extent the Democratic Party is also more homogeneous. (8) As a result, as a striking chart in Mann and Ornstein's recent book shows, there is no ideological overlap between the parties in the Senate--the most liberal Republican is still more conservative than the most conservative Democrat. (9) As Gregory Wawro and Eric Schickler have observed, party lines today correspond to policy preferences and ideology more tightly than at other times in our history. (10) Compromise across the aisle is virtually never obtained. Procedural holds by individual senators have proliferated on both legislation and nominations. The use or threatened use of the filibuster--extended debate used to block Senate action--has become commonplace, resulting in what is in effect a supermajority voting requirement for any legislative business. We can now see that convulsive events like the civil rights movement, the rise of the religious right, and the "Gingrich revolution" of the 1990s have polarized the parties and reshuffled the voters, eliminating the kind of bipartisan cooperation we saw in the 1950s and 1970s. Perhaps more importantly, this realignment has been accompanied by a new rhetoric, illustrated by the "Tea Party" faction of the Republican Party, that characterizes the other party as not just misguided but evil and immoral. (11) Since legislating is difficult under the best of circumstances, portraying opponents in this Manichean way, and viewing the policy process as a struggle between good and evil, can have devastating effects. Washington now seems unable to deal with the pressing legal, economic and social issues facing the country in the twenty-first century.
Solving the larger problem of hyper-partisanship and good versus evil rhetoric is not part of my agenda, however. The more limited issue before us is whether there are changes in laws or congressional procedures which can ease governmental gridlock and make it more likely that important policy issues can be addressed successfully. My focus is on the United States Senate, and more particularly on the Senate's unusual rules and traditions which cluster around the right of extended debate. Many critics see this aspect of the Senate, resulting in a sixty vote requirement for any meaningful action, as the crucial element in what we call gridlock. They point to the large increase in the use or threat of filibusters in recent years, and the routine filing of cloture motions, as evidence of a crisis in the Senate. (12) They decry the procedural arms race that has resulted, as the majority resorts to parliamentary tools designed to curtail minority rights, like early cloture filing and filling the amendment tree. (13) Even though I contend that the abuse of the legislative hold and the right of extended debate are merely symptoms of gridlock, not causes, I propose to analyze these issues from a legal perspective and ask whether anything can and should be done to make the Senate more functional.
SUMMARY OF ARGUMENT
I take as my text for this paper congressional scholar Steven Smith's insightful use of the term "procedural fragility" to describe the Senate's parliamentary culture. (14) The Senate is procedurally fragile in the sense that the body's special traditions of extreme individualism, deference to other members and procedural looseness make it especially vulnerable to members who would take advantage of (some say abuse) the opportunities for obstruction thus created. The Senate has sometimes in the past operated on a cooperative basis, across party lines, but the political polarization and demonization of opponents' ideas we see today can be fatal in a body like the Senate whose rules and traditions allow for and even invite obstruction.
Many critics argue that the only solution for the Senate's woes is to enforce a strict regime of majority rule, under which a simple majority's policy preferences must always prevail. This goal of pure majoritarianism, however, is fanciful. We must remember that the Senate itself is anti-majoritarian by design. Since each state has two senators, bills can and often do pass with the support of members representing a small minority of the nation's voters. Moreover, the Senate's enactment process, like that of most legislative bodies, includes numerous bottlenecks that may prevent a majority from bringing a bill to the floor for a vote--leadership authority, respect for committee autonomy, and the unrepresentativeness of committee membership, to name only a few. The tradition of extended debate and the hold are merely the most prominent of these obstacles, but they are the most difficult for the majority to overcome.
I argue that the Constitution demands something much more profound--ultimate majority control. By that I mean the power of a simple majority of members present to adopt or amend rules governing the day-to-day business of the Senate at any time. Under this principle, the filibuster itself is not unconstitutional if a majority of senators wish to allow it for institutional reasons. Nor are supermajority voting rules themselves unconstitutional, because the majority may find them useful to ensure consensus on certain kinds of issues. The same is true for all of the other procedural obstacles, like a sticky committee system and the prerogatives of the majority leader. So long as a simple majority may decide at any time to amend or repeal such rules or informal practices, the Constitution is not violated. Even if the so-called "constitutional option" to end debate on a rules change by majority vote is exercised, as I advocate, it seems clear that the Senate would probably continue to operate under some of its current rules, such as the Cloture Rule (Rule XXII), and would continue to tolerate certain kinds of holds and extended debate. But at least under the principle of ultimate majority control, members would have the power to modernize these rules and traditions to reduce their minority veto effect and thus make the Senate a more functional legislative body. It would be, in other words, less procedurally fragile. It would be able to counter more effectively the unreasoning obstructionism that has become commonplace. I will consider what some of these changes might be later on. Most important, the clear establishment in Senate rules and procedures of the principle of ultimate majority control would constrain the minority from abusing its prerogatives because of the ever present threat that the majority would further curtail them.
Under my analysis, then, there is only one provision of the Senate's current Standing Rules that offends legal norms, and that is the language of Rule XXH which requires a vote of two-thirds of members present and voting to end debate on a motion to amend those same Rules. (15) If the majority could establish its authority under the Constitution to change Senate rules at any time, some of the minority veto features of the modern Senate could be eliminated or modified. Gridlock might not be eliminated completely--since its roots are not legal or constitutional but rather political and ideological-but at least the Senate would be better armed to resist the worst abuses we see today.
The roots of today's sixty vote Senate lie in its structure, traditions and culture. (16) The Framers viewed the two houses of Congress as having very different functions, and they developed very different cultures. The House, with younger members elected every two years, was intended to reflect the views of the people more directly, and to be an active legislative body. (17) The Senate, elected by state legislatures and representing the states, was designed as a small elite chamber, with longer terms of office staggered for stability. (18) It would function much like a more experienced older brother to the rambunctious House of Representatives, dampening the policy excesses of the other body. In its early years the Senate met in secret and did not originate much...