Our Modern Congress: Designed to Fail

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“Vice-President Kamala Harris”

Doesn’t that sound good? She would not have been my first choice, but there are many good reasons for picking her. She’s young (55), bright, articulate and a superb debater and “attack dog.” She will make mincemeat of Mike Pence. She might even get The Donald to come unglued. (If anyone can do that, a Black woman who is self-evidently smarter, better informed and quicker than Trump can. Let the Twitter wars begin!) Harris has the law-enforcement credentials to blunt any attack on the ticket as “soft on crime.” Her selection, all by itself, puts a dagger in the heart of white supremacy. She’s a native-born American of Jamaican and (East) Indian descent. With any luck, her path-breaking candidacy will inspire the 270,000 Indian-Americans who live in Dallas-Fort Worth or Houston to help turn Texas blue. Joe Biden waited as long as he could to name his running mate. Now that we know, we can starting thinking about his Cabinet. Here are my picks: Secretary of State: Barack Obama Secretary of Defense: James Mattis Attorney General: Eric Holder (again) Antitrust Division Chief (DOJ): Tim Wu Secretary of the Treasury: Elizabeth Warren Secretary of Labor: Bernie Sanders Secretary of Energy: Lynn Jurich Secretary of the Interior: Jay Inslee Secretary of Homeland Security: Beto O’Rourke Secretary of Education: Janet Napolitano Secretary of Health and Human Services: Julie Gerberding Secretary of Housing and Urban Development: Cory Booker Secretary of Transportation: Mary Barra Chairman, Council of Economic Advisors: Paul Krugman Next opening on Federal Reserve: Carmen Reinhart Ambassador to Ukraine: Alexander Vindman Special Envoy to the Middle East: Tom Friedman This is the kind of government we can have if Biden-Harris win. We can also fix Congress (see below). There is no time to look back. Now it’s all hands on deck until January 20.

“Each House may determine the Rules of its Proceedings . . .”—U.S. Const., Art. I, Section 5, Par. 2 (in part)

Last week the United States Congress failed a critical test. With thirty-plus million people unemployed, and millions facing hunger, eviction and destitution, it failed to pass a vital second relief bill.

Think of Congress as a spaceship on the launching pad. It didn’t even rise off the pad. As it struggled to get airborne, it collapsed on its side and exploded, immolating its “payload,” the American people. Then the President tried to cobble together a relief package of vague, misleading and utterly inadequate unilateral decrees.

Why did Congress’ rocket ship explode so catastrophically? Under its rules of operation, it had been designed to fail. Changes in how Congress works have made failure inevitable for about a generation.

The good news is that we can fix it. We can do so without amending our Constitution. We can even fix it without reforming our malapportioned Senate, whose distortion of majority rule can’t be changed without every state’s consent. Democratic majorities in both Houses could fix Congress’ biggest and most recent design failures by two simple majority votes on congressional rules next January. Read on.

The crux of the matter is bipartisanship. Everyone claims he’s for it, including our President, the most obnoxiously partisan president in our history. A lot of these claims are lies and spin. But what the President or individual members of Congress say or think doesn’t really matter. Today’s rules and customs of both Houses are designed not just to make bipartisanship fail, but to make it virtually impossible.

Take the failed relief bill, for example. The Democratically controlled House passed a full relief bill, with $3 trillion of rescue money, on May 15, almost 90 days ago. In the Senate, Republicans outnumber Democrats 53 to 45, with two independents, Bernie Sanders (from Vermont) and Angus King (from Maine), caucusing and usually voting with the Democrats. The Vice-President could break a tie vote. So all the Democratic bill would need to pass, in theory, is the support of six out of 53 Republicans, enough to force a tie that the VP could break.

This year, 23 Republicans must defend their seats in a time of pandemic resurgence and economic collapse. Think that just six of them—a little over one-quarter—might like to have their names on an economic rescue package before facing the voters?

By this reasoning, a straight, bipartisan vote—on something like the Democratic bill, or some reasonable compromise—would have passed in a few days of haggling. So why didn’t it?

The reason is that the Senate today is not a bipartisan institution. As the Senate works today, a bill gets to the floor for discussion and a vote only if and after it has received a majority vote in the majority caucus, in this case of the Republicans. And that vote never occurs unless the Majority Leader (now Mitch McConnell) determines, in his wisdom, that a majority of his own caucus favors it and so actually authorizes the vote.

Under this regime, for example, a small minority of the whole Senate, amounting to about a quarter of all its members, can block any bill from getting to the floor for a vote. Here’s an example of how this recipe for minority rule works in practice:

How Congressional Failure Works In a Divided Chamber
Party/Faction	% of Party	% of Whole Chamber
Majority Fringe	51%	26%
Majority Mainstream	49%	25%
Unified Minority	100%	49%

If the majority mainstream votes with the unified minority, their combined vote is 74% of the whole chamber, but the bill can’t advance because the majority fringe has a majority of the majority caucus (approximately 51% to 49%). So the majority fringe can block the bill in caucus, even though it has only 26% of the whole chamber’s votes, while 74% of the full membership support the bill. (Note that in the Senate, but not in the House, each percentage point of the chamber’s vote represents one indivisible member.)

In theory, six or more Republicans could put a relief bill over the top in the Senate, even now, if the bill could come to a vote in the whole chamber. They would if they could—in order to serve their constituents and save their own skins in the midst of our current health and economic meltdown. But they never get the chance. Instead, the extremists, and pols who think they can ride out the disaster because they don’t face re-election for two or four years, call the shots, by virtue of the precondition of a majority vote in the majority caucus. This is democracy?

Under a thing called the “Hastert Rule,” the House now works exactly the same way. It’s named for Denny Hastert, a convicted felon and former high-school basketball coach who somehow got elected to the House from Illinois and somehow got chosen by the GOP as Speaker. Under that rule, which even Nancy Pelosi seems to follow today, nothing gets to the floor of the House for a vote unless it first has won a majority vote in the majority caucus, in our time the Democrats.

Think about that for a moment. Suppose each House is almost equally divided among the two parties, as is often the case these days. Suppose that the majority party has a bare 51% to 49% majority of all the membership. Under the “majority of caucus” rule in each House, the majority of the whole chamber can’t advance a bill unless it has a majority of the majority, or 26% of the whole chamber. That means a small minority of more than 25% of the whole chamber, which happens to comprise a majority of the majority, can block any bill in the majority caucus, even if the other party (49%) is wholly for it. Under those circumstances, every bill that needs bipartisan support requires a 75% supermajority of the whole chamber to pass.

Funny thing, that. In the entire US Constitution, there is no specific requirement so stringent for voting in Congress. Even ratifying international treaties in the Senate, or removing a president after impeachment, requires only a two-thirds vote, or 67%. (The Constitution’s sole three-fourths requirement is for eventually ratifying a constitutional amendment by the individual States, after its approval by two-thirds of each House.)

So both Houses of Congress have, by their own internal rules and customs, effectively raised the requirement for a winning vote on anything, in either House of a closely divided Congress, to something like a supermajority of three-fourths. That’s a proportion so large as as to be mentioned in our Constitution only once, for the number of states needed to ratify amendments.

If you’ve ever wondered why today’s Congress can’t get anything done, it’s not the meanness or recalcitrance of its current members. It’s these rules.

Oddly enough, the Constitution nowhere states that Congress is to do its business by a simple majority. It does require that a majority of each House “shall constitute a Quorum to do Business.” (Article I, Section 5; emphasis added.) That requirement was apparently designed to avoid “midnight” legislation by tiny cabals, at a time when some members could take two to three weeks to cross the country from their home states to the Capitol on horseback.

But the Framers probably failed to specify majority rule in general only because they assumed it. After all, majority rule had been the custom of every democracy ever, from ancient Greece and Rome to the British democracy since Magna Carta, from which we separated in 1776.

More to the point, nothing in the Constitution prevents each House from determining, in “the Rules of its Proceedings,” that it will follow the custom of majority rule that has defined democracy throughout human history. The Democratic Party and Candidate Biden could make that a goal of their respective platforms and promise to re-institute majority rule in both Houses of Congress, if they win both, as soon as the new Congress convenes. They should do so.

While they’re at it, Democratic congressional majorities should also abolish filibusters and Senate holds. “Holds” are fake “filibusters” in which an individual Senator doesn’t even have to speak himself or herself hoarse, like Jimmy Stewart in the classic movie, Mr. Smith Goes to Washington, but just sends the Majority Leader a note. Filibusters were invented to delay and insure debate, not to give a legislative minority veto power, far less individual Senators. But in recent years Republicans have used filibusters for vetoes at 142 times the “traditional” rate from World War I to the Vietnam War.

So it’s time to retire filibusters and holds and get back to the fundamentals of democracy: majority rule. Our Constitution never mentions filibusters: they were an invention of later Senate rules makers, intended only to impose reasoned delay, as a means to avoid parliamentary tricks during once-a-century partisan divisions. They were never intended to impose routine vetoes by legislative minorities, as they do today.

As for today’s bizarre, undemocratic, and partisan “majority of majority caucus” rules in both Houses of Congress, it’s useless to speculation on their motivation. But their effects are absolutely clear. They vastly increase the power of the Speaker of the House and the Senate Majority Leader, rendering each House an authoritarian, not deliberative, body ruled by a de facto dictator. They also give individuals (in the Senate) and rump minorities (in both Houses), including fringe groups, effective veto power over legislation. And so they strangle bipartisanship in its cradle.

It doesn’t matter which party started strangling first. Both claim the other did. But either party could promise, if given a majority, to return to simple majority rule with a possibility of bipartisanship. It could do so just by changing the rules in each House, by simple majority vote. Think a few voters, now waiting in fear for Covid-19, joblessness, hunger, eviction and destitution to ruin their families, might respond to that kind of promise?

Footnote: “[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” US Constitution, Article V (in part).

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