Public congressional approval ratings currently stand at 18%. This is a result of the manifest inability of the Senate to enact significant legislation by reason of the three-fifths cloture rule and the restriction on Senate amendments to legislation by the majority leader’s device of ‘filling the tree’ with trivial amendments, only slightly relaxed by Senator Mc Connell, and the practice of House Speakers of both parties of refusing to call up bills unless they can be passed without the aid of the opposing party.
In 1946, the then Senate Majority leader, Robert Taft, declared “I have always said that I would vote for cloture on any bill after adequate debate had been had. After all, we have a system based on majority rule. If the minority undertakes to prevent action by the majority beyond proper limitations, we are likely to find Congress completely discredited.”
Senator Mc Connell and Speaker Pelosi work to deny any President of the opposite party the enactment of compromise legislation on his watch. The Obamacare legislation and the Trump tax bill circumvented normal procedures, Obamacare because of a Democratic ‘supermajority’ in the Senate and the tax bill through use of the budget reconciliation device.
Senate Republicans made little effort to negotiate compromise health insurance legislation, the result being a messy and expensive law that served some consumer interests while doing little, as has been seen recently, for public health properly so-called. At present, an uncontroversial extension of unemployment benefits is obstructed by House Democrats holding it hostage for other programs. Similarly policing reforms respectful of federalism proposed by Senator Scott are opposed by Democrats who want to ‘swing for the fences’ after the election.
The Constitution does say that each House shall make its own rules. But filibusters did not become possible until a ruling by Vice President Burr in 1816 , and the first filibuster did not take place until 1831. After a successful filibuster against the Armed Ship Bill in 1917, the first cloture rule requiring a two-thirds majority of all Senators was adopted, modified in 1959 to require 2/3 of those present and in 1975 to require 3/5 of those present. A majority rule cloture has now been adopted for nominations, but not for legislation.
The potency of filibusters has been enhanced in recent years by the ‘the gentleman’s filibuster’ in which Senators merely signify their intention to speak, triggering abortive cloture votes. Even nominations subject to majority vote can be delayed by thirty hours , the fate of even the least controversial of President Trump’s nominations.
Historically the filibuster’s most important use was to obstruct civil rights legislation when actual speeches were required. This was a large issue, calling forth midnight sessions unlikely to result now if ‘gentlemen’s filibusters’ were abolished. Now something in the nature of a political earthquake is needed to pass all substantial legislation.
The practice of House Speakers of refusing to advance bills unless they can be passed with the votes of the majority party alone has delivered the parties into the control of the Tea Party and the Progressive Caucus The only check is a discharge petition, which exposes its signers to ready threats of retaliation by the Speaker.
Congress has been increasingly by-passed, by crude and divisive judicial legislation and by abuse of executive rule-making.
The composition of the Senate, with its ‘over-representation’ of small states and its six-year staggered terms is a check on majority tyranny. Super-majorities are provided only for impeachment, expulsion of members, overriding of presidential vetoes, ratification of treaties, and removal of Presidents under the 25th Amendment. The late Lloyd Cutler expressed the view that “a strong argument can be made that its requirement of 60 votes to cut off debate . . . [is] unconstitutional”, also the view of the late Professor Philip Kurland.
What is needed is both a change to curb non-speaking filibusters and/or to reduce the number of votes required for cloture and a change in the number of signatures required for a House discharge petition. The change in the filibuster rule might omit four matters of constitutional dimension: creation of new Supreme Court justices,, admission of new states, ratification of interstate compacts, and alteration of voting qualifications and apportionment of representatives
The present Senate Majority leader and House Speaker have richly earned replacement. Their oaths run to the Constitution, not to their parties, and Article I, Section 1 of that Constitution, significantly its primary and first provision (though not one emphasized in today’s law schools, where instruction in legislative drafting and processes is essentially unknown) declares that “All legislative powers herein granted shall be vested in a Congress of the United States.”
The behavior of the Congressional leadership would lead one to believe that the principal function of Congress is not policy-making, but deposing or preventing the re-election of the President.
When majorities cannot legislate at all, stasis results, together with the bottling up of pressures for change, leading to demands for sudden and even extra-constitutional measures. Legislatures are agencies of compromise and must be allowed to do their normal work. There remains the safeguard of executive veto by a President , and of judicial review. Majority rule is a conservative principle allowing adjustments without explosions. Deadlock feeds radicalism, and disillusionment about the efficacy of democratic politics.
The late Henry Simons of the Chicago, free market school of economics wrote in Taft's time:
"There is nothing more insidious than the notion that big, rapid changes are easier or more fruitful than small, slow changes: it leads to talk without action, to action without talk, and perhaps to collapse of democracy under a mass of accumulated, neglected routine business. The way to multiply big problems is to neglect small ones. There is nothing seriously wrong with our institutional system save our proclivity to waste time attacking or defending it and to neglect proper tasks of changing it continuously by wise collective experimentation."
The inability of Congress to legislate is no check on a headstrong President. It discredits those who would otherwise supply checks upon him.