What Broke Congress and How to Fix It

Serious observers of American politics have many doubts and questions, but most are sure of one thing. Congress is broken.

Congress can’t pass a bill for aid to Ukraine in its wartime agony. That is so even though the bill would enrich and strengthen American defense industries, support a valiant, struggling would-be ally, and not require a single American soldier to fight. Congress can’t even pass a bill to defend our Southern border against over-the-top unauthorized migration—a bill that a vast majority of members of Congress seem to want, but that would cross our Demagogue’s plans for his campaign.

So what’s wrong with Congress? Too many of its members put their party’s and their own personal power above their country and anything resembling principle. That’s clear to even to a casual observer.

But isn’t our Constitution supposed to thwart that kind of thing? What about the much-vaunted “checks and balances” that our Founders gave us? What about their suspicion of the dark sides of “human nature” that our high-school civics teachers used to teach with pride?

Truth is, our Constitution has a time bomb hidden in it. That time bomb has been going off, in slow motion, ever since our Founders ratified it. The time bomb appears in a whole sentence, but the key part is just nine words long: “Each House may determine the Rules of its Proceedings . . . “ Article I, Section 5, Clause 2.

At the moment, the slow-motion explosion of this time bomb has two chief effects. First, a distinct minority of each House can block any action by that House. Let’s call this a “minority veto,” because that’s in substance what it is. Second, a single, solitary, lone individual member of either House can now block any action by that House. Let’s call this an “individual veto.”

None of these effects is explicit in the Constitution itself. With modern electronic processing, you can search the Constitution word for word in seconds. If you do, you won’t find any reference to a “filibuster,” a “Senate hold” or the “Hastert rule.” And you certainly won’t find a rule that lets any single Representative call for a vote to depose the Speaker of the House at any time.

But now extra-constitutional rules have tied us up with minority vetoes and individual vetoes in both the Senate and the House. A minority, and even a single member, can block action in either House. Hence “gridlock.”

In the Senate, the ultimate source of the time bomb is the so-called “filibuster.” But it’s come a long way, baby, from the speaking filibuster depicted by Jimmy Stewart in the old movie “Mr. Smith goes to Washington.”

Today a single senator doesn’t have to stand up and talk for hours or days and “hold the floor” to prevent a bill or appointment s/he doesn’t like from passing. All s/he has to do is pass a note to the Senate Majority Leader, regardless of party, saying s/he objects to the matter under consideration. On receiving this co-called “Senate hold” note, the Majority Leader places the matter at the back of the queue of Senate business, where, since the Senate is always busy, it usually stays.

As a practical matter, a vote on the issue mostly never comes up, so the individual “hold” kills it. At one time, Senator Shelby, Republican of Alabama (natch!) held up some seventy key appointments of President Obama just to extort special benefits for his state.

Voilá! An individual veto springs out of a minority veto, namely, the filibuster, which now takes a 60-vote super-majority to overcome. So any single, sole, solitary senator can, in practice, block any action by the Senate. And, if that block is somehow overcome, a minority of 41 votes supporting the veto can make it permanent. This is “democracy”?

In the Senate, this caricature of democracy has been going on for decades, but it has lately been getting worse. Over a dozen years ago, I analyzed the frequency of minority blockage of legislation in the Senate. [Search in linked source for first instance of “41”.] During the last two years of George W. Bush’s presidency and the first two years of Barack Obama’s, that frequency had increased by 142 times as compared to the period 1917 to 1974. Yet that earlier period itself had been no slouch. It had included the two World Wars, women’s suffrage, our second civil-rights revolution, women’s liberation, and most of the controversial War in Vietnam. During the last century minority vetoes in the Senate became not just routine, but near-daily occurrences.

In the House, minority and individual vetoes took hold later and by more circuitous paths. The minority veto first arose under the so-called “Hastert Rule” in the mid-1990s. The then Republican Speaker of the House, one Denny Hastert, decided not to permit even floor debate, let alone a vote, on any bill or other matter unless a majority of the Republican majority—not the whole House—first approved it. Under this Rule, a majority of Republicans alone (“majority of the majority”), not the whole House, determines what gets done.

Now do the math. For a long time, the House has been split between Republicans and Democrats nearly equally. So suppose the Republican majority (which allows that party to pick the Speaker) has a thin majority of 51% of the whole House. Under the Hastert Rule, nothing gets done unless a majority of this majority approves. That’s 26% of the whole House. But if that same number, 26%, disapproves, the action gets shelved. Thus, the minority veto in the House is now even more extreme than that in the Senate: the House’s minority veto requires only 26%, while the Senate’s requires 41%.

The individual veto in the House arose by an even more circuitous path. In order to retain his Speakership, former Republican Speaker Kevin McCarthy agreed to restore an apparently earlier House rule that any single member of the House can call for a “no-confidence” vote on the incumbent Speaker. After a Democrat (Hakeem Jeffries) came within six votes of becoming Speaker, out of 435 in a Republican-majority House, extremists in the Republican Party forced now-Speaker Mike Johnson to accept the same rule.

So how does that individual “no-confidence” House veto actually work in practice? We can see in the latest of many debacles in the House. Recently senators spent weeks negotiating and drafting a bipartisan bill that would have provided needed funding for Ukraine’s valiant fight against Putin’s Atrocity. It also would have imposed drastic measures to limit the flow of migrants across our Southern Border—measures that went well beyond what Democrats were comfortable with.

This bill was a teeth-grinding compromise that would have imposed stronger border measures than any in decades. The Senate approved it handily. Reporters covering the House all thought there were enough votes there to pass it, too.

So did this hard-won compromise become law? No. Speaker Johnson refused even to bring it up for a vote in the House. Why? Because several extremist Republicans, motivated by the Demagogue’s promise to torpedo the bill for political gain, had threatened to call a “no-confidence” vote against Johnson as Speaker, which the tiny Republican margin in the House likely would have caused him to lose.

So the peculiar combination of House rules, a “no confidence” vote only threatened by individual House members, and a tiny majority for the Speaker combined to permit a few extreme Republican members of the House to kill a bill desired by majorities of both Houses, which senators had worked weeks to put together. And the extremists effected this veto merely by anonymously threatening a “no-confidence” vote; they didn’t actually have to do anything or put their reputations on the line.

Can we all say “dysfunction”? Not to be left behind by the Senate and its no-speaking “filibuster,” the House, in just the last few years, has surpassed the Senate in the extremity of both minority and individual vetoes.

Our Founders knew a lot about political perversions of democracy. They endlessly debated the need for “checks and balances” and the dangers of “popular passion,” “faction” (meaning political partisanship), and demagogues. But they never foresaw that a simple provision allowing each House to make its own procedural rules would devolve into minority and individual vetoes in both Houses. I suppose they underestimated the extent to which individual power is a supreme driving motivation for people making a career of politics.

Yet another point of “human nature” needs attention before we turn to solutions. We all want to make our mark on the world. That’s particularly true for politicians; many “throw their hat in the ring” precisely to change the world. So when the law and rules make it far easier to block action—whether by individual veto or by joining a negative minority—than to cobble together a positive majority, won’t most pols inevitably “just say ‘no’”? Won’t they exercise their individual and minority vetoes often, simply as the easiest way to make their mark?

How can we fix this? Minority vetoes and individual vetoes arising out of each chamber’s own rules have little to do with the most basic flaws in our Constitution. Those include the intrinsic malapportionment (by population) of the Senate and the Electoral College, and the failure to anticipate and outlaw gerrymandering. Most likely, each House devolving into minority and individual vetoes would have been harder for any Founder to anticipate.

The key here is the rules of each House. Rules of procedure seem so innocuous, don’t they, until you understand what men like Mitch McConnell and Denny Hastert can get away with by manipulating them? Was Hastert, who perpetrated these vetoes on the House, a great legal mind, a constitutional scholar? Hardly. He was a former high-school basketball coach who paid to hush up a charge of pedophilia!

So I think we need an amendment to our Constitution, outlawing minority vetoes and re-establishing majority rule in both Houses. Here’s my proposal for such an amendment, to be inserted immediately after the single sentence of Article I, Section 5, Clause 2:

“Notwithstanding anything in this Constitution to the contrary, members of either House numbering at least one-quarter of the whole membership of that House, without regard to party affiliation, may, by written petition or by motion on the floor, bring any motion, rule, bill, resolution, proclamation, consent to executive appointment, proposal for amendment to this Constitution, or an amendment to any of the foregoing, to a vote by that House in regular or extraordinary session. Such vote shall take place within ten days of that petition or motion having been made, and a simple numerical majority of those present and voting, a quorum being present, shall prevail.”

Pretty simple, isn’t it? An amendment like this could restore majority rule to both Houses, eliminate majority and individual vetoes, and yet still allow each House to adopt its own rules in other, less democracy-killing respects.

No doubt future members of Congress, driven by the individual ego that characterizes our species, would in time find other ways to thwart majority rule again. But at least this amendment would mark a first attempt to restore to our deviant nation what “democracy” has meant since the times of ancient Greece and Rome.

Could this sort of amendment have a chance to pass? I think so, especially in comparison with more fundamental constitutional reforms. No state is going to give up its two votes in the Senate, as the Constitution explicitly requires. That legacy of slavery will last as long as our democracy does.

And the National Popular Vote Plan is far more likely to work than any attempt to reform the Electoral College by amending the constitution. All that has to happen to make the Plan work is for states with a total of 270 or more electoral votes to adopt it. As of 2023, states having 205 electoral votes had signed on.

In each such case, the prospects for a constitutional amendment are small because “success” would require smaller states giving up power disproportionate to their population. That disproportionate power is a bit like Charleton Heston’s rifle: others will have to take it from small states’ “cold, dead hands.”

But congressional dysfunction affects both small-state and big-state representatives alike. No one can get anything done when everyone can veto work in progress. The dismal results are obvious and obviously enduring, even more so in a time of close and rancorous division in Congress.

With Congress so closely divided between the parties, maybe, just maybe, an amendment to make Congress work again might have broad appeal. At least eliminating minority and individual vetoes offers no obvious partisan advantage to either party. Instead, it would enhance the opportunities and incentives for what makes any legislature work: cooperation and compromise.


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