Of Senate Obstructionism

A few days ago, former Senator Judd Gregg penned an opinion piece in The Hill about the events of October 6. As an example of historical amnesia deployed for partisan ends, this piece provides an excellent opportunity to correct some misconceptions about the Senate and its rules. Read the piece here and then return for my commentary.

• As is common among conservatives, Gregg writes as though the Articles of Confederation never existed and the Constitution was drafted immediately after the Revolution. This allows him to trace a historical trajectory directly from the fight against “tyrannical” English government to the Bill of Rights. In reality, this was a much more complex period that produced a Constitution that instituted both a more powerful federal government and new protections for individual liberty.

• Gregg also implies that the Senate rules are part of the checks and balances built into our Constitution. In fact, the Constitution does not say anything about filibuster, cloture, holds, or any of the other rules Senators use (in Gregg’s words) for “protecting the rights and freedoms of the minority.” These rules reflect the historical development of the Senate, not some higher cause for which the Senate has become the special guardian. While the Constitution was written by men who were not yet part of the new federal government they proposed, the Senate rules have been written by Senators, for Senators.

• Gregg acts as though everything changed in 2006 when the Democrats gained control of the Senate. He claims that is when Senate rules that had “historically [been] used with great discretion” became “everyday … weapon[s] wielded with autocratic excess.” He’s talking about “filling the tree” as a way to block minority amendments. But Democrats have made a similar argument about the Republican use of holds and filibusters to block bills. What Gregg doesn’t mention is the dramatic increase in the use of filibusters since the early 1990s. (Numbers available here.)

• When Gregg does mention the filibuster, he does so to scold Democrats for their willingness to trample what he casts as a “right” of the minority. Of course, the idea of killing the filibuster did not begin with Reid.The Senate introduced the cloture procedure (for ending filibusters) in 1919. Since then it has slowly lowered the bar for ending them. In 2005, Senator Bill Frist threatened to end the possibility of filibustering judicial nominees by doing what Senator Reid did two weeks ago. He was only prevented by bipartisan the Gang of 14. Rather than representing a sudden break with centuries of precedent, Reid’s move is only the latest step in almost a century of limiting the filibuster in the Senate.

• Gregg closes by claiming that “our freedoms … have been gravely eroded.” Invoking “filibuster” and “freedom” in the same argument is a touchy thing. Many of the most famous filibusters have been attempts (sometimes successful) to protect the rights of elites to limit the freedom of others, specifically of Southern whites to maintain segregation against Southern blacks. Of course, not all Senate obstructionism is about maintaining such inequality. But that’s the funny thing about parliamentary rules: they’re rarely as “pure” as their proponents suggest.

The truth of the matter is that Senate obstructionism has been accelerating over the past four decades. The real “genie … now out of the bottle” is the frequency of obstruction by the minority party, which shows no signs of letter up or even leveling out. Each new minority learns new tactics from the last, leading to increasing stalemate in the U.S. Senate. Fortunately, the near-century long trend of limiting such obstruction seems also to be picking up steam. I am still hopefully that the Senate will choose real reform.

Related note: James Fallows at The Atlantic has recently taken up the crusade for proper coverage of Senate obstruction by the media. (See, for example, here, here, here, here, and here.) While I agree with his critiques of the media coverage, I would appreciate a bit more recognition in his own writing that this problem pre-dates Mitch McConnell’s term as Minority Leader. Even if McConnell and his Republican colleagues have taken obstructionism to a new level (and should be recognized for doing so), the current trend stretches back beyond 2006 to the 1960s and 1970s.