By Mark S. Mellman - 07/16/13 11:38 PM EDT
The Senate drama might be over for now, but the discussion shouldn’t be.
Republican Leader Mitch McConnellMitch McConnellFive takeaways from the Indiana primary Reid: Judiciary a 'rubber stamp' for Trump-McConnell Iran and heavy water: Five things to know MORE (Ky.) recently warned that enabling the president to discharge his constitutional obligation to “faithfully execute the laws,” which would require permitting the Senate to consent to his appointees with just 51 of 100 votes, would “ruin the Senate.”
Would its positive job rating be even lower than the 12 percent Rasmussen recently recorded for the current, presumably well-respected, Senate?
Would a ruined Senate get less done, passing fewer than 2.8 percent of the bills introduced (the percentage passed in 2011-2012)?
That’s already a record low — about two-thirds less than the average from the election of Ronald Reagan through the election of Barack ObamaBarack ObamaClinton still on track for nomination despite Indiana setback Trump takes Indiana, forcing Cruz out of GOP race Morris: 2016 a 1952 redux MORE.
Would a ruined Senate exhibit less comity and bipartisanship than this one does?
Sadly, it’s hard to see how a “ruined” Senate would differ from the one we have.
Thoughtful defenders of the status quo often argue that the Senate’s tradition of extended debate is what will be spoiled. For better or worse, that was ruined long ago.
When Mr. Smith, Sen. Rand PaulRand PaulGOP operative Ed Rollins joins pro-Trump super-PAC Overnight Energy: Clinton makes her pitch to coal country Rand Paul calls on Clinton to apologize for coal job losses MORE (R-Ky.) and even Wendy Davis in the Texas Senate were filibustering, they were engaged in extended debate. They discussed the issue at hand. They informed their colleagues. They galvanized the public. They brought attention to their concerns and pressure to bear on the body.
But the tracking system, which began in the early 1970s and allowed other business to proceed during a filibuster, along with the reforms of 1975, divorced the filibuster from debate.
Today, filibusters are used to prevent debate, not extend it. They don’t require anyone to talk about anything, which reduces the barriers to using this extreme tactic and renders the concept of extended debate a hollow shell. All but a few of the hundreds of filibusters that have taken place in the past three decades involved no debate at all.
So ending filibusters for executive branch nominations is completely unrelated to extended debate.
Moreover, if curtailing debate ruins the Senate, blame the Framers.
They never even mentioned extended debate. The concept appears neither in the Constitution nor in the Senate’s original rules.
As I noted last week, Alexander Hamilton, writing in the Federalist Papers, stated the Framers’ expectations: “[The senators] may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice.”
Ratify or reject. Not ignore, not filibuster.
The filibuster was in fact an accident of history. As Brookings scholar Sarah Binder relates, the original Senate and House rulebooks were nearly identical. Both allowed a simple majority to end debate.
In 1805, indicted murderer Aaron Burr was presiding over the Senate and advised members to reduce the number of duplicative rules. So in 1806, this was among many rules dropped but not with the intention of creating a filibuster. Even then, senators didn’t filibuster because they didn’t realize they could.
Only several decades later, and nearly half a century after the Constitution was ratified and the original Senate rules adopted, did the minority use this unintended loophole to create the filibuster.
So McConnell misses the historical mark when he blames Democrats for ruining the Senate by reforming the filibuster.
However, if he is searching for the proximate cause of this alleged threat to the institution, he need look no further than his mirror.
We simply would not be here if “Senator Gridlock” had not led Senate Republicans into 420 filibusters since he became leader — almost twice as many as any other minority leader from either party. McConnell’s filibuster abuse is what’s ruining the Senate.
Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982. Current clients include the Majority Leader of the Senate and the Democratic Whip in the House.