Diminished productivity is only part of it — the filibuster also blunts accountability. Obstructionist tactics regularly keep legislation and nominees from reaching the Senate floor altogether, preventing public debate as well as any up-or-down vote. Senators thus avoid taking a public stand on policy or engaging in genuine decision-making. Constituents are left to guess how these elected officials would have voted on the underlying policy matter, rather than being able to weigh the choices their representatives actually made.
No wonder less than 14 percent of Americans approve of how Congress is operating.
Our democracy was not designed to function with just two branches. Consider just a couple of ways the filibuster directly affects the presidency. First, when Congress stalemates, the president must either accept inaction or seek policy change through administrative action. In some situations (approving payment of America’s debt, for instance), the former is not an option. And, the latter could result in a troubling expansion of executive power. Suffice to say, neither situation is ideal.
Second, when the Senate refuses to approve or reject executive nominees, it handicaps the president, leaving him unable to fulfill his constitutional duty to carry out existing laws. For instance, last year Senate Republicans pledged to filibuster to death any nominee for Director of the Consumer Financial Protection Bureau — a tactic geared to eliminate the new Bureau, despite the duly-passed law establishing that agency’s existence. After months of delay, President Obama resorted to a questionable “recess” appointment when the Senate was not technically in recess.
Clearly, Obama understands first-hand how the filibuster can undermine effective governance. Romney should recognize this as well. After all, while the Republicans are the ones stonewalling today, Senate Democrats would surely continue the obstructionist arms-race if they lose control of the Senate, just as they did during George W. Bush’s presidency. Moreover, as a man who claims the efficiencies of corporate-style management as a model for his own leadership, the arcane and archaic Senate Rules should appall Romney.
Obama and Romney should proclaim their unified support for reforming the Senate’s Rules at the start of the new Congress in January. In doing so, they can look to another odd couple — former Governor Tommy Thompson, now the Republican senatorial candidate in Wisconsin, and Representative Tammy Baldwin, the Democratic candidate. During their debate last week, Thompson argued that “procedures in the United States Senate should be modernized so that . . . 50 percent of the people in the Senate can make policy, and move this country forward.” Baldwin agreed that it was high time for rules reform.
Without the force of law, a good idea is . . . just another good idea. As Thompson and Baldwin recognize, every candidate has an interest in allowing actual governance to occur — that is what they are elected to do. Filibuster reform should be at the top of both parties’ agendas.
Marziani is counsel in the Democracy Program at the Brennan Center for Justice at New York University School of Law.