A Broken United States Senate
by Charles Lemos, Mon Dec 21, 2009 at 01:50:11 AM EST
While Paul Krugman writing in the New York Times believes that the healthcare reform legislation now on the verge of passage in the Senate is "an awesome achievement," I do not share those sentiments. Though there is certainly much of merit in the bill, overall it is a Frankenstein monster of bill whose sum of parts more reflects the narrow and profane interests that are overrepresented in the United States Senate. I do agree with Paul Krugman that the Senate has become "ominously dysfunctional." It is an institution that no longer works for the American people, one that produces flawed legislation no matter which party is in control and an institution that does not serve the national interest but instead caters to those who have access.
First let me state unequivocally that you can replace all one hundred of the Senators currently serving in the Senate and you would still have more or less the same inferior legislative product being delivered serving the same narrow interests. The problem is quite simply a mix of its composition that favors rural, more conservative sectors of the country over the more populous, urban and more progressive sectors of the country and the arcane rules that govern the body plus the insidious role that corporate lobbying and other monied interests now play in the nation's politics.
I have noted in previous posts that the 26 least populous states in the country who form a majority in the Senate represent just 17.8 percent of the nation's population according to the 2000 US Census. While these 26 include states like Vermont, Delaware and Rhode Island, of the 26 states 15 voted for McCain and 11 for Obama in 2008 but if we go back to 2004 then 19 of these 26 states voted for Bush versus just eight for Kerry (OR, CT, RI, ME, VT, HA, NH, DE). The most populous of these 26 states is Colorado and the least is Wyoming with the bulk of the states being a mixture of Southern, Prairie, Mountain West/Far West or New England states. Of these four regions, three are overwhelmingly rural and conservative and account for 20 of the 26 states. The United States is not the only country with a legislative body that overrepresents rural interests. Thailand and Japan have the same problem and not surprisingly suffer from many of the same problems that we do. The question of whether Thailand is a failed state or not is one that many Thai now discuss.
As the Republican Party is favored by rural and conservative interests, it too is overrepresented in the Senate though not to the extreme shown above. The GOP has 40 Senators at the moment but those seats represent just a fraction above 35 percent of the US population. Still that's an over-representation of 5 Senate seats, not an insignificant number in a 100 member body.
The composition of the body has subtle effects in perhaps unexpected ways. Since 1961 the Majority leaders in the body have come from Nevada (Reid), Tennessee (Frist), South Dakota (Daschle), Mississippi (Lott), Kansas (Dole), Maine (Mitchell), West Virginia (Byrd), Kansas (Dole), Tennessee (Baker), Montana (Mansfield). All but Tennessee (16th in population thanks to Nashville and Memphis but otherwise culturally similar) form part of these 26 least populated states. And if I include Minority leaders, I'd be adding Kentucky (McConnell) and would have to extend back until 1977 before I could find a Minority leader that came from one of the top 15 populated states, Hugh Scott of Pennsylvania.
There's a reason for this. It's reflective of the fact the Senators from the larger states are more burdened by serving in leadership roles. Senators from the more populated states have to cater to the needs of a much larger, broader and heterogenous constituency that they are effectively prevented from holding leadership positions. As the Senate's own website notes Senators "from small and large states alike all have comparable committee and floor responsibilities, Senators from the more populous states, such as California, face a broader array of representational pressures than do Senators from the smaller states, such as Wyoming. An indirect effect of Senate apportionment is that contemporary floor leaders of either party tend to come from the smaller rather than larger states because they can better accommodate the additional leadership workload."
The repercussions are that it further limits the interests of more diverse urban America from gaining currency. The last majority leader to come from one of the more populous state was Lyndon Johnson when the country was a vastly different place. This is in marked contrast to the House where members serve more or less the same size constituency and where the leadership tends to come from the more populated states. Speaker Pelosi hails from San Francisco and her predecessor was Dennis Hastert who represented Chicago. The last Speaker of the House who came from one of the least populated states was Carl Albert of Oklahoma in the 1970s.
But it is the arcane rules that are perhaps the greater problem and certainly the easier problems to correct because the rules that govern the Senate were created by the Senate itself. To change the way Senators are elected or the number of Senators would require a Constitutional amendment that is just never going to happen without tearing the country apart.
Two of the Senate rules are increasingly the problem. The US Senate is the only legislative body in the world that permits its members to engage in unlimited debate and an unlimited opportunity to offer amendments, relevant or not, to legislation under consideration. These two aspects of the Senate are having an increasing detrimental effect on the caliber of legislation that is coming out the chamber. Senator Nelson's compromise amendment runs 383 pages alone. And Senators can call for amendments to be read in full as happened this week when Senator Tom Coburn of Oklahoma requested that Senator Bernie Sanders' 767-page amendment that would have established a single-payer healthcare system be read aloud on the Senate floor in its entirety. The reading would have taken eight to ten hours and would have ground the Senate to a halt. Senator Sanders was forced to withdraw his amendment in the interest of keeping the Senate running. Still, the ability to offer amendments that are not even necessarily germane to the essential character of each piece of legislation being considered has a tendency to create these Frankenstein monstrosities.
Moreover, the United States Senate is the only legislative body in the world where each and every member is a gatekeeper with the ability to place holds on nominations and with the ability to derail the will of a majority via the use of the filibuster. Paul Krugman points to the increasing abuse of the filibuster.
Some people will say that it has always been this way, and that we've managed so far. But it wasn't always like this. Yes, there were filibusters in the past -- most notably by segregationists trying to block civil rights legislation. But the modern system, in which the minority party uses the threat of a filibuster to block every bill it doesn't like, is a recent creation.
The political scientist Barbara Sinclair has done the math. In the 1960s, she finds, "extended-debate-related problems" -- threatened or actual filibusters -- affected only 8 percent of major legislation. By the 1980s, that had risen to 27 percent. But after Democrats retook control of Congress in 2006 and Republicans found themselves in the minority, it soared to 70 percent.
And Matt Yglesias in The Atlantic last year covered the history in greater detail to support Barbara Sinclair's findings:
Back in 2005, Senate Democrats seeking to block the GOP majority portrayed the filibuster as a pillar of America's democratic tradition. In fact, it's no such thing. The original rules of the Senate allowed a simple majority of legislators to make a motion to end debate. In 1806, at the recommendation of Aaron Burr, those rules were amended to allow for unlimited argument--not to create a counter majoritarian check on legislation, but because the motion had been so rarely invoked that it "could not be necessary." This decision paved the way for the modern filibuster. But no one actually attempted to use it until 1837, when a minority block of Whig senators prolonged debate to prevent Andrew Jackson's allies from expunging a resolution of censure against him. The unlimited-debate rule eventually became so cumbersome that senators made attempts at reform in 1850, 1873, 1883, and 1890, all unsuccessful. Finally, in 1917, the Senate adopted a rule allowing a two-thirds super majority to cut off debate.
Under this rule, in the years that followed, segregationists mounted a series of filibusters meant to block civil-rights legislation. In 1922, the mere threat of the procedure was enough to torpedo a bill to prevent lynchings. In 1946, a filibuster undermined a bill by Senator Dennis Chavez of New Mexico intended to block workplace discrimination. Strom Thurmond set the record for longest individual filibuster--at more than 24 hours--in an ultimately unsuccessful attempt to block the relatively mild Civil Rights Act of 1957. And the landmark Civil Rights Act of 1964 secured a filibuster-proof majority only after 57 days of debate and substantial watering down.
By 1975, the Senate was finally prepared for reform. But rather than eliminate the filibuster entirely and return to majority rule, the members merely diluted it, reducing the number of votes required to end debate from 67 to 60.
Since then, filibustering has only grown more frequent. In the 1960s, no Congress had more than seven filibusters. In the early 1990s, the 102nd Congress witnessed 47, more than had occurred throughout the entire 19th century. And that was not an especially filibuster-prone Congress--each subsequent one has seen progressively more. The 110th Congress, which just ended, featured 137.
Clearly, the filibuster has become the preferred tool to delay legislative because to delay is to derail and to kill. Senator Harkin has some ideas on the matter than should get consideration.
"I think, if anything, this health care debate is showing the dangers of unlimited filibuster," Harkin lamented last week. "I think there's a reason for slowing things down ... and getting the public aware of what's happening and maybe even to change public sentiment, but not to just absolutely stop something."
The plan that Senator is considering revisiting is the one that he announced with Senator Lieberman of Connecticut back in 1994 and that would have slowly scaled down the cloture threshold for legislation that had been filibustered. The first vote would require 60. If it failed to reach 60, debate would continue until a new vote, which would require 57, and so on until a simple majority could determine whether the measure lived or died.
Furthermore, as a Constitutional issue, the Senate does make its own rules, it can vote to change them. This would likely require a 60 vote super majority however.
My last point is the role of money in politics. K-Street is now a Washington institution but it's not in the Constitution. However, the lobbying machine points to the First Amendment of the Constitution which prohibits Congress from making laws that restrict the people's right to "petition the Government for a redress of grievances." I question whether corporation have human rights.
Still it is the unbelievable growth of the lobbying industry that is remarkable. When LBJ was the Senate Majority Leader in 1961 there were under 50 lobbyists. Today there are over 23,000 lobbyists.
According to the Center for Responsive Politics (CRP), a watchdog agency that tracks the amount of money being spent to influence legislation, a record $263 million had been spent on the lobbying efforts between January and July of this year in our battle for health care reform. By September that number was up to $400 million. It's likely to surpass $500 million when all is said and done coming just ahead of last year's $486 million spent. But yes, that's right one billion dollars has been spent by the various healthcare lobbies over the past two years.
Common Cause found that one point this summer, the healthcare lobby was spending $1.4 million a day to lobby members of Congress. That comes out to about $2,600 per day per member of the House and Senate. The pharmaceutical lobby alone spent $733,000 per day in the first quarter of 2009. The number of lobbyists involved in this effort surpassed 3,300. There are six health care industry lobbyists for every member of Congress.
Now if you are a lobbyist what is your best use of funds? No doubt, the industry will spread the money around but in reality the money is highly targeted. Take the practice of switch-hitting. In 2000, with Republicans controlling the House and a closely-divided Senate, Republicans on health- related committees received more than double what Democrats received (68 percent to 32 percent) from the health industries. In 2008, with Democrats controlling both the House and Senate, over 61 percent of the industries' contributions to committee members went to the majority Democrats and just 39 percent went to Republicans.
Then there's the focus on relevant committee members with oversight for healthcare. These received the lion's share of the money. Senator Max Baucus of Montana received the most money from the health care industry of any member on his Senate Finance committee in 2008, $1.2 million. Now take Senator Orrin Hatch of Utah who sits on the Health, Education, Labor and Pensions Committee, on the Finance Committee, and on the Finance Health Subcommittee, where he is the ranking minority member. His take this decade is $5.5 million from various healthcare lobbyists.
The key point is that lobbyists aim to influence the people who have the power. In a Senate that over-represents rural, under-populated states that largely tend conservative then it is not surprising that those who most lobbied are Senators like Max Baucus, Orrin Hatch, Blanche Lincoln and Ben Nelson. And there's the additional bonus that a little goes a longer way given the media markets in which they have to compete.
The answer should be clear. We need campaign finance reform including public financing of Congressional campaigns. Without it, you can change the entire membership of the Senate and you would get the same legislative output that is largely dictated by the interests of corporations and does reflect not the overriding national interest. The Senate is broken. Fixing it is of the utmost urgency.