There are 51 votes — the Senate Democratic caucus plus Vice President Kamala Harris — to raise the debt limit and save the United States from default.
There are 51 votes — again, the Senate Democratic caucus plus Vice President Harris — to reauthorize the Voting Rights Act, end partisan gerrymandering and shield state and local election officials from outside interference.
And, despite the recent collapse of negotiations between Senators Cory Booker and Tim Scott, there are almost certainly 51 votes for substantial police reform.
With a simple majority, in other words, Democrats could secure the full faith and credit of the United States, restore to strength the most important voting rights law in U.S. history and make progress on a critical issue for millions of Americans. They might also, if they have the votes, make it easier for workers to organize a union and, separately, codifyRoe v. Wadeinto federal law.
Of course, the Senate does not run on 51 votes. Instead, members must assemble a supermajority to do anything other than appoint judges, confirm nominees and pass certain spending bills. Pretty much everything else must go through a protracted and convoluted process that makes a mockery of the Senate’s reputation for debate and deliberation.
It would be easy for me to write another jeremiad against the filibuster. I can’t say I’m not tempted. But I also have nothing left to say. Its problems are as well-documented as anything could be and the main argument in its favor — that a counter-majoritarian chamber already structured by equal state representation needs an additional supermajority requirement to protect the “rights” of a partisan minority — does not withstand serious scrutiny.
And so, instead of re-litigating my brief against the filibuster, I want to ask a larger question. What, exactly, are the rules of the Senate — and of Congress in general — for? Do they exist for themselves, a narrow expression of the priorities and prerogatives of the chamber and its members? Or are they instrumental, meant to facilitate the broader tasks of representation and governance?
Obviously, I am far from the first person to ask this question. It was, in the last years of the 19th century, a subject of major debate among members in both chambers of Congress.
In June 1890, Henry Cabot Lodge, a young Republican congressman from Massachusetts and chairman of the House elections committee, introduced to Congress a bill to secure the integrity of federal elections in the South.
A response to the assault on suffrage in Mississippi, Alabama and other former Confederate states, Lodge’s bill would have placed the power to certify federal election results into the hands of federal officials. “There is absolutely nothing in this bill,” he explained, “except provisions to secure the greatest amount of publicity in regard to elections and to protect the ballot-box by making sure the punishment of those who commit crimes against the suffrage.”
The Lodge bill passed the House. But it died in the Senate, killed by a Democratic filibuster the following year. In 1893, a still-frustrated Lodge — now himself a senator — took the chamber and its rules to task in an essay for the North American Review, then one of the nation’s most prominent literary magazines. I have written about this essay before, in brief, but I want to return it, since, at this moment of congressional dysfunction, Lodge’s critique is as relevant as ever.
“The primary and the only proper and intelligent object of all parliamentary law and rules is to provide for and to facilitate the ordinary action of public business,” Lodge wrote. “When any set of parliamentary rules ceases to accomplish this object they have become an abuse — and an abuse of the worst kind.”
It was not just that obstruction stymied the work of government, but that it undermined accountability and made lawmakers less responsible: “If a minority can prevent action, the majority, which is entitled to rule and is entrusted with power, is at once divested of all responsibility, the great safeguard of free representative institutions.”
Lodge had no trouble with the Senate’s tradition of unlimited debate. But, he insisted, the Senate did not exist to debate; it existed to govern and its rules must work to that end. “The two great rights in our representative bodies are voting and debate,” Lodge wrote. “If the courtesy of unlimited debate is granted it must carry with it the reciprocal courtesy of permitting a vote after due discussion.”
Voting, he continued, was much more important than debate. “We ought to have both, and debate certainly in ample measure; but, if we are forced to choose between them, the right of action must prevail over the right of discussion. To vote without debating is perilous, but to debate and never vote is imbecile.”
Interestingly, Lodge did not blame the minority in the Senate for obstruction. Instead, he blamed the majority for allowing it to happen in the first place. “If the rules permit them to obstruct, they are lawfully entitled to use those rules in order to stop a measure which they deem injurious,” Lodge wrote. “The blame for obstruction rests with the majority, and if there is obstruction it is because the majority permits it.”
If the majority was ultimately responsible for obstruction, Lodge concluded, “The only way in which proper rules for the transaction of business in the Senate can be obtained will be through the action of a party committed as a party to the principle that the majority must rule, and that the parliamentary methods of the Senate must conform to that principle.” In short, the party in power has to believe that it is entitled to govern on its own; otherwise, nothing will change.
Despite the great distance between his time and ours, Lodge’s argument cuts to the core of our current predicament. No, Democrats won’t get everything out of Congress that they want; their majorities are too slim and their coalition is too fractious. But they should be able to act on basic issues of governance and on points where the entire party agrees. To blame the filibuster or the parliamentarian or the reconciliation process is to avoid the truth: It is the majority that is responsible for the current state of affairs.
Either Democrats believe they have a right to govern independent of Republican assent, or they don’t. And if they do believe that they’re entitled to rule, then all they have to do is change the rules.
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