Senate Dreams and Nightmares

Yet while an expanded Senate majority is good news for Republicans, it won’t automatically translate into legislative success. A combination of new Democratic tactics and old Senate rules still leaves the minority the power to frustrate the Republicans’ legislative agenda in the next Congress. A sober look at some history is instructive.

When Lyndon Johnson was Senate Democratic whip in the early 1950s, he carved out a role negotiating procedural and policy problems with lawmakers of both parties before bills reached the floor, as Robert Caro recounts in Master of the Senate. Johnson’s powerbrokering built his institutional stature, but also greased the passage of many bills.

Moving legislation is more complicated these days. Indeed, Johnson might not recognize his old stamping ground. No stranger to political infighting, LBJ would nevertheless be appalled by the belligerent behavior of certain Senate Democrats today.

“This is an institution that plays 21st-century politics, but runs on 18th-century rules,” says Marty Gold, a former senior Republican leadership aide. Moving legislation is so difficult that words like “majority” no longer have the meaning we learned in 8th-grade civics. Johnson’s successors as Democratic leader, though in the minority now, have both the means and the motive to hijack the Senate agenda, and they do it virtually every day.

This explains the lack of progress on pieces of the GOP agenda, such as making the tax cuts permanent, reforming tort law, and continuing welfare reform. It’s also why next year many activists and pundits will ask: If Republicans control the House and Senate with expanded majorities, why aren’t they getting more done?

They’ll be less puzzled if they think of the contemporary Senate as the Wild West, with desperado lawmakers jumping out from behind rocks at any time, wounding administration nominees, and shooting down legislation regardless of merit. The real question is how anything at all gets accomplished in a hyper-partisan body operating under rules designed in an era of greater comity and manners.

Unlike Lyndon Johnson, who quietly twisted arms in the cloakroom, today’s Senate Democratic leaders play a pugnacious game. Where LBJ removed obstacles to the passage of legislation, they throw them up. This year they regularly filibustered circuit court nominees (10 so far this Congress). They refused previously routine unanimous consent requests to go to conference, thereby blocking lawmakers from reconciling competing versions of legislation passed by the two houses. They routinely derail legislation negotiated between chairmen and ranking minority members in committee with hosts of non-germane amendments and endless debate. None of this is likely to change with 55 Republicans.

“This is now a 60-vote chamber,” former Senate parliamentarian Bob Dove told me. “It didn’t used to be that way.” Before 1975, it took 67 votes to break a filibuster, and the filibuster was used sparingly. “Back then the filibuster was used only on big issues,” Dove told me. “Many of the southern Democrats felt if it was used too often it would trivialize the tactic, making it easier to end potential filibusters on civil rights issues.” Since the rules changed in 1975, filibusters have become more frequent and of broader application. For example, until this Congress, the filibuster was never used to block confirmation of circuit court judges.

In Johnson’s day, too, senators were often willing to cross party lines to promote their regional or ideological interests. LBJ could troll for support in what Dove calls a “four-party Senate,” comprising liberal northern Democrats, conservative southern Democrats, conservative Republicans, and eastern (liberal) Republicans. “Patching together 51 senators in a less partisan environment from that universe was a little easier,” Dove says. In today’s “two-party” Senate, neither side has the numbers to win once an issue becomes politicized and lawmakers draw partisan swords.

Yet if the procedures are the means of obstruction, what are the motives? “The Senate is the last line of defense for the Democrats in the current institutional makeup,” one veteran Senate leadership aide told me. “They don’t control the White House, and the rules of the House prohibit the minority from having any input. The Senate is one place where they can have an impact.”

Internal Senate Democratic politics also plays a role. The class-action reform bill aborted earlier this year is a good example. After falling one short of the 60 votes needed to end a filibuster last year, reform proponents negotiated substantive changes and announced they had 61 solid votes for the bill. Yet when Majority Leader Frist sought to bring up the new version, he faced a host of non-germane amendments, including drug reimportation and the minimum wage. “The non-germane part of the bill would have been bigger than the underlying class action legislation,” a Senate Republican leadership aide told me. “And every time we agreed to do another non-germane amendment, they wanted more.”

Which is where internal Senate politics came into play. The job of convincing senators to agree to limit their amendments fell to Democrats like Tom Daschle, Harry Reid, and Chris Dodd. Daschle opposed the bill, so he had no incentive to work out a procedural compromise. Reid and Dodd had other considerations. Senate watchers believe the two might run against each other for Democratic leader. “A race like that could come down to one vote,” a lobbyist with insights into the process told me. “Why would either one of them want to tell any of their colleagues not to offer a non-germane amendment?” So even with 60 votes favoring a class-action policy compromise, the Senate was paralyzed, and the legislation died.

“Class action was an example of how the environment of trust has deteriorated,” Gold says. “You can’t blame the Democrats for wanting to offer non-germane amendments. That’s part of the Senate tradition. But you can’t blame the Republicans for wanting some kind of assurance that the process would end. The Democrats would not give them that.” Most observers I talked to agree with Gold that the Democrats’ inability to settle on an endgame doomed the legislation.

But who’s really to blame, the people or the process? Gold reminds me that until 1958 Lyndon Johnson operated with tight majorities and even more stringent rules for breaking a filibuster. Like many others, Gold believes the chamber the Framers tried hardest to insulate from politics has become “a partisan quicksand pit.”

Gold also believes television has contributed to the partisan rancor. “The Senate worked out the impeachment rules in two hours in closed session,” he says. That probably would not have happened if the proceedings had been on C-SPAN.

Clearly, our expectations about moving a legislative agenda through the Senate need to be recalibrated. To say “Republicans ‘control’ the Senate is not even close,” Dove told me before the election. And there’s little chance either of internal procedural reform–for which Senate rules require an even higher 67-vote supermajority–or of Democratic accommodation. For all practical purposes, the term “majority” is a misnomer in the Senate.

If we could channel the spirit of LBJ, he’d doubtless agree that the only “control” the majority has in today’s unmanageable Senate is the power to checkmate the other party’s initiatives. Nor will the Republicans’ four net reinforcements allow them to overcome a determined Democratic minority with the means and motivation to obstruct. Even as they celebrate Tuesday’s victory, then, Republicans face political challenges that are daunting.

Gary Andres is vice chairman, research and policy, The Dutko Group Companies and a columnist for the Washington Times.