To many supporters of health-care reform, the Senate bill has been ruined—or at least badly damaged—by concessions made to ensure its passage. They blame the Senate's procedural rules, which allow individual senators to frustrate the will of the majority by using the filibuster to delay or prevent a vote by demanding unlimited debate on that proposal. Yet their arguments are often based on the assumption that simple majority rule is always desirable. It's not that simple.
Critics of the Senate's procedural rules argue that the abuse of the filibuster is encouraging dysfunctional government. The filibuster relies on an individual senator's right to unlimited debate, which Senate rules state can only be ended by a vote of 60 senators—a supermajority. The filibuster, they say, is the reason the current health-care reform bill is flawed. Senators Joe Lieberman and Ben Nelson, for example, threatened to filibuster the bill if concessions on the public option and restrictions on federal funding for abortion weren't tightened in the bill. To win the votes they needed, Senate Democrats made the concessions.
Left-leaning proponents of procedural reform have advocated ending this supermajority requirement and allowing the Senate to end unlimited debate by a simple majority vote. To be sure, supermajority requirements increase the leverage of individual legislators. But the Senate's rules don't create power; they just distribute it. A more majority-friendly distribution of power would not necessarily be an improvement.
Take the House of Representatives. Its members lack access to many of the tools—like the filibuster—enjoyed by their colleagues on the other side of the Capitol. Instead, the rules of the House favor party leaders, to whom much of the body's power is distributed. The result is that power is concentrated in the hands of a few individuals. In theory, of course, an ineffective leader can be replaced by the will of a simple majority. In practice, ousting the Speaker of the House is tougher than ending a filibuster.
Some legislative bodies have even more majority-friendly rules than the House. In New York, legislative powers are almost entirely distributed to the majority leaders of the Senate and Assembly, who essentially control the entire lawmaking process. How would the New York legislature handle a measure like the health-care reform bill? The leaders would introduce the bill "at the end of the day, at the end of the session, and hold a vote the next day," says Eric Lane, a professor at Hofstra Law School and the senior fellow at the Brennan Center for Justice—a think tank that has produced a number of influential reports analyzing New York’s dysfunctional government. "The public would have no idea what's in it."
Such majority-friendly legislatures may prevent voters from holding individual legislators accountable for their actions. In New York, almost all discussion about legislation takes place in closed party-conference meetings. Differences are worked out in secret; the public only gets to see the final product. This can make it very difficult for a voter to determine the role his or her representative may have played in the legislative process. As a result, it's tough for many New Yorkers to know if their representative is doing a good job, a bad job, or any job at all.
Legislators are ultimately responsible to their constituents. At the federal level, then, individual senators are not accountable to the national electorate; they are accountable to the voters of their state. That's why Sen. Ben Nelson, Democrat of Nebraska, sought federal Medicaid money for Nebraska and Sen. Mary Landrieu, Democrat of Louisiana, pushed for dollars for Louisiana. They owe their jobs to the voters of their states.
Although the filibuster may be enjoying something of a renaissance in today's Senate, senators have always attempted to advance the interests of their states. During the debate over the last major health-care reform bill in 1993, under then-president Bill Clinton, New York's Daniel Patrick Moynihan used his position as chair of the Senate Finance Committee to subject the plan to intense public scrutiny. Part of Moynihan's purpose was to address concerns over the impact the bill might have on New York. As Bill Cunningham, Moynihan's former chief of staff, told me, "a senator has a duty to fight for his state." The Clinton health-care plan officially collapsed in September 1994. What happened to Moynihan, whom some blamed for the bill's demise, on Election Day two months later, when Democrats across the country took a beating? "He got reelected," Cunningham says.
Many progressive procedural reformers argue that the filibuster stands in the way of progressive legislation. As a functional matter, they're absolutely right: more often than not, the legislation delayed or blocked by filibusters has been socially progressive.
But the real obstacle to progressive legislation is federalism, which makes it difficult to impose a single viewpoint, even a popular one, on national policy. As long as states exist as governmental divisions—and as long as federal representation is based on local elections—national legislation will be subject to regional compromises. A supermajority requirement gives individual legislators more ability to influence those compromises, but ending that requirement won't diminish the power of regionalism: it will simply put it in the hands of different elected officials, who will in turn do everything they can to defend their own regions. The federal system will always give what some see as undue influence to individual legislators: Medicaid, for example, may not exist but for its financing formula, which favors the poorer Southern states whose representatives were managing the program's creation.
Procedural reform in the Senate may indeed be necessary. Individual senators might be abusing the filibuster. Unfortunately, the extraordinarily partisan political climate that has given rise to the use of the filibuster has also prevented a fair debate on its merits. The supermajority requirement, which most contemporary legal scholarship suggests is constitutional, may play an important role in protecting minority viewpoints. And effective reform need not be based on majority rule: as John Heilemann of New York Magazine has suggested, a senator who threatens to filibuster could be required to do so. Such a rule may make senators think twice before invoking their right of unlimited debate.
Unfortunately, the defenders of minority rights have not shown themselves to be particularly principled. Senate Republicans loved the filibuster when it was being used to delay health-care reform; now they deplore the tactic for the leverage it created for undecided Democrats such as Ben Nelson. In their hands, leverage meant influence; in the hands of anybody else, leverage means extortion.
With assessments of the filibuster often based more on the outcomes it produces than the principles it may defend or pervert, the debate over parliamentary procedure has become as ideologically driven as any other political dispute. Always beware a political partisan bearing a process argument.
David Parker is a writer and political consultant in New York. His writing has appeared in The Wall Street Journal and The Huffington Post.