Gaming American Democracy: Recent, Unprecedented Republican Obstructionism and Abuse of the Senate’s Rules

This is the third in a series of columns by Mr. Dean that examines the new techniques being employed by Republicans to alter the political landscape. –Ed.

The United States Senate no longer operates as our nation’s founders intended.  It is no longer the great deliberative body they once envisioned.  The Republican minority, marching in lockstep, has inflicted serious damage to the institution that was designed to temper our democratic process—by empowering a tyrannical minority that has proved itself able to indefinitely block the will of the majority.  Sadly, those responsible are shameless about what they have done. This is the problem one faces when dealing with a cocksure authoritarian leadership and its obedient followers, because such leaders act only in their own perceived interests.  And when they are wrong, they refuse to realize it.

It was at about this time last year that Senate Republican Leader Mitch McConnell openly explained what the Senate’s Republicans had been doing—or more accurately, not doing—to the National Journal.  McConnell conceded to that publication that “The single most important thing we [Republicans] want to achieve is for President Obama to be a one-term president.”

This statement surprised no one, for that objective, on the part of Senate Republicans, has long been blatantly obvious.  They have been conspicuously gaming the Senate’s traditions and systems by distorting and abusing the body’s standing rules and procedures since 2007, becoming even more aggressive when Barack Obama arrived in the White House.  Yet this improper and unethical activity has gone largely unnoticed; they are getting away with it because the national news media is tolerating these abuses.

For those who are in interested in, and not yet fully aware of, the situation, here is what is happening:

The Republicans’ Abuse of the Senate’s Standing Rules

A book could be written on the abuses that Republican senators have concocted to make the Senate increasingly inoperative, but a few examples make the point.  For instance, when Senator Bernie Sanders, an Independent of Vermont, tried to amend the health care bill with a lengthy rewrite amendment that ran 767 pages, Republican Senator Tom Coburn of Oklahoma demanded that the Senate clerks read the entire amendment aloud.  After two hours, six clerks, and only 139 pages read, Sanders withdrew the amendment.  Sanders had not expected the amendment to pass, but had merely wanted others to be forced to vote their rejection, so that voters would know where they stood.

Another typical example of Senate Republicans’ gaming the rules occurred after the health care legislation passed, when Republicans were angry that they had lost.  Michigan Democrat Carl Levin, Chairman of the Armed Services Committee, and Senator Claire McCaskill, a Missouri Democrat who chairs the Subcommittee on Contracting Oversight of the Homeland Security Committee, were investigating the training of Afghan police in their respective committees.  They had called an Admiral and a General to testify; both had flown from halfway around the world to attend the hearings.  Levin went to the Senate Floor to request unanimous consent to hold the hearings after the witnesses arrived. (He needed permission because of Senate Rule XXVI, Paragraph 5, which requires unanimous consent when committees or subcommittees hold hearings after 2 p.m. when the Senate is in session.)  Such permission is routinely and regularly granted.  But Republican Senator Richard Burr of North Carolina, a member of Levin’s committee, and at the behest of all Republicans, objected.

Needless to say, both Levin and McCaskill were outraged.  Levin erupted:  “It’s unconscionable,” he said, observing that “The obstructionism has become mindless.” McCaskill added, “Also, it’s a dumb rule in itself.  It’s time we started looking at some of these rules.”

Even the rule that frustrated Levin and McCaskill is, however, not as dumb as the heavily-abused “hold”—a practice that is not even authorized in the Senate rules, but still has come to control the business of the Senate.

Holds began as a courtesy, when the Majority or Minority Leader was told by a Senator that he or she needed to better prepare for debate, or had a schedule conflict, or the like.  The Senator would advise the leadership that they would not agree to unanimous consent that a bill or a nomination could be taken up by the Senate, and the Senate’s leadership, in turn, would delay action for a week or two, as needed.  But now, holds are placed willy-nilly on anything and everything, and for indefinite periods of time.

As Norm Ornstein, a leading expert on Congress, bemoaned in The American, the journal of the conservative American Enterprise Institute,  “over the past 30 years, [the hold] has morphed into a process where any individual [senator] can block something or someone indefinitely or permanently—and often anonymously.  Now, at any given time, there are dozens of holds on nominees for executive positions and judgeships, and on bills.  Of course, bills can be brought up even if there is not unanimous consent, but to do so is cumbersome and often requires 60 [to prevent a filibuster], rather than 50, votes to proceed.”

Examples of anonymous holds blocking legislation or nominations are endless.  They are sometimes used to barter with the leaders for something a senator wants.  But the new Republican norm is to simply place a block on everything, in order to prevent the Obama Administration from filling slots for appointments or enacting legislation. For example, at one point Republican Senator Richard Shelby of Alabama placed holds on over 70 nominees whom the President had sent to the Senate.  Ornstein reports that Senator Tom Coburn, “the undisputed hold champion,” once had holds on some 80 bills and nominations.

While Coburn may be the champion, however, he has many Republican rivals in the practice of abusing holds.  Moreover, all the Republicans are complicit in their abuse of the filibuster, which has reached new extremes.

The Recent, Unprecedented Republican Misuse of the Filibuster

Senator Tom Harkin—a Democrat from Iowa who has spent a quarter-century in the Senate, and has worked hard to keep the institution he loves functioning—has addressed the unprecedented abuses of the filibuster that have developed during the last few years, because the Republican minority is now hell-bent on either imposing its will on the majority or, failing that, preventing any action whatsoever.  Speaking at the Brennan Center for Justice, Harkin explained the good, the bad, and the ugly of Senate Rule XXII regarding filibusters.  (I am not going deeply into intricacies of the filibuster here, but the best recent scholarly look at the subject was written by Catherine Fisk and Erwin Chemerinsky: “The Filibuster.”)

Senator Harkin noted, in particular, Republicans’ practice to filibuster even bills and nominations they ultimately vote for, simply to prevent the Senate from getting work done.  More often, Senator Harkin explains, the filibuster is used by Republicans “to assert the tyranny of minority views and to prevent debate and deliberation.”

Harkin explains how a minority of Republican senators, when their “party has been resoundingly repudiated at the polls,” can, by abusing the Senate’s rules, ensure that “that party retains the power to prevent the majority from governing and carrying out the agenda the public elected it to implement.”  That action, Harkin reminds us all, defies Alexander Hamilton’s explanation of the “underlying principle animating the Constitution,” when he wrote in Federalist No. 22 that “the fundamental maxim of republican government . . . requires that the sense of the majority should prevail.”  Indeed, majority rule is the very foundation of our democracy.

To overcome a filibuster requires 60 votes, in a proceeding known as cloture.  Currently, Republicans have the 41 votes need to block action (for, the Senate now consists of 47 Republicans, two Independents, and 51 Democrats), and they have consistently done so.  Senator Harkin’s talk also sets forth a reasoned filibuster reform measure, which gained wide support among his Democratic colleagues.  But the Democratic Caucus (unlike the Republicans who do stay together regardless) could not muster the will to impose reform on the Senate.  To the contrary, Minority Leader McConnell and Majority Leader Harry Reid were forced to make a backroom deal.  Or as “Crooks and Liars” described it, the Senate Democrats snatched defeat from the jaws of victory.  Accordingly, Republicans have continued to abuse the filibuster almost every day the Senate is in session.

With a Strong Assist From Mainstream Journalism, Our Democracy Is Sinking

Readers may wonder why there has been virtually no public outrage at the Republicans’ literal hijacking of our deliberative democracy.  It is because the mainstream news media consistently reports this story as if both sides were at fault.  In fact, that is not true.

I have watched this dynamic evolve over the past three decades, up close and personally.  Yes, Democrats have responded to Republicans by using Republican tactics, when the alternative was being totally steamrolled by the Republicans.  However, it is the Republicans who have been, and continue to be, the driving force in these abusive tactics.

Indeed, Republicans brag that it is good to destroy the federal government, and ignore the consequences of what they are doing.  Holding and filibustering virtually everything is a Republican game that they have forced on others, and the failure of political reporters to call it for what it is only adds to the problem.  No honest or competent journalist can say with a straight face that the abusive obstructionism, and resulting gridlock, is not driven by Republicans, so most say nothing.

Contemporary mainstream journalism suffers from a uniquely dysfunctional condition:  Too many journalists believe that every political story (I am not talking opinion pieces, here, but straight political reporting) must have two or more sides, with each side meriting equally weighted reporting.  This assumption is as ludicrous and fallacious as the Fox News mantra “Fair and Balanced.”  Not every political story has two or more sides, and reporting that pretends otherwise is often more harmful than helpful, and more misleading than informative.

When Washington-based political journalists are called to task on their failure to explain the way that Republicans are openly abusing the processes in Washington, a fact that can hardly escape their attention, they get very sensitive and defensive, and some even get pissed off.  We saw this most recently when James Fallows, a former chief speechwriter for President Jimmy Carter and a seasoned political journalist, had had enough of his Washington compatriots’ ignoring the Republicans’ abusive tactics.

Writing for The Atlantic, Fallows charged several Washington reporters with being “enablers,” arguing that they are part of the problem because of their failure to report the GOP abuse of the filibuster. He singled out, especially, The Washington Post and The New York Times.  Fallows got angry reactions from reporters at these news outlets, but he has not backed off.  Rather, Fallows has fired off another example of the ludicrous “Onionesque” reporting by The Washington Post, which is emblematic of the problem.

Fallows nicely summarizes the situation: “You can consider this [GOP] strategy brilliant and nation-saving, if you are a Republican. You can consider it destructive and nation-wrecking, if you are a Democrat. You can view it as just what the Founders had in mind, as Justice Scalia asserted recently at an Atlantic forum. You can view it as another step down the road to collapse, since the Democrats would have no reason not to turn the same nihilist approach against the next Republican administration.” Fallow acknowledges that he believes that “it does more harm than good. You can even argue that it’s stimulated or justified by various tactics that Democrats have used,” as those who rationalize do. “But [professional journalists] shouldn’t pretend that it doesn’t exist.”

I understand why Republicans are gaming American democracy. This is the way their authoritarian mindset works, and they are unable to appreciate the consequences of their actions.  But I will be damned if I understand why the leading American news institutions are tolerating, if not enabling, these actions, which are destroying majority rule in the United States.