It's no secret our democracy does not work well anymore. In many respects, including that particularly large swath of issues that involve someone's monetary profit and someone else's loss, it can barely be said to be a democracy at all—unless one takes the view held by some in Washington and Wall Street that money fulfills the function not only of free speech but of citizenship itself. If America is to ameliorate its current democratic dysfunction anytime soon, merely electing better candidates to Congress is not going to be enough. We need a system that has fairer rules, that diminishes the role of money and that encourages politicians and journalists to investigate and portray the realities they observe honestly, thereby reducing the distorting lenses of finance, ideology and ignorance. And yet these items rarely feature on any progressive agenda.
This is, in many ways, understandable. Ending the Bush/Cheney administration, and defeating the Christian conservative and corporate base on whose behalf it acted, required emergency measures of a largely defensive nature. And the chance to replace George W. Bush with Barack Hussein Obama both for symbolic and pragmatic reasons in 2008 appeared so enticing (and exciting) that we can all be forgiven for losing ourselves in the romance of focusing our time, money and energies on making this man America's forty-fourth president.
But the 2008 election was not a game changer after all. For change of the kind Obama promised and so many progressives imagined, we need to elect politicians willing to challenge the outdated rules of the Senate, fight for publicly financed elections and, in the absence of that, struggle against the Supreme Court's insistence on giving corporations the same free speech rights as individuals. We need smarter organizations that pressure politicians as well as pundits and reporters, not necessarily to see things our way but to hold true to the ideals they profess to represent. We must work to transform our culture to re-ennoble the notion of the "public good."
Some of the challenges standing in our way look to be all but impossible to overcome, like the blatant limitations on democracy inherent within the Electoral College or a Constitution that grants Wyoming and California the same power in the Senate. Others, meanwhile, are maddeningly complex, such as Senate rules regarding cloture and the like. But particularly in light of the 2010 election, apathy is no option. A little imagination and a great deal of hard work and patience can help put us on a path to a more democratic and equitable America. But don't expect it to be easy, and don't be surprised at the resistance of those who profit from politics as usual.
Congress has become a place where, most of the time, nothing much happens. Once in a great while, however, because of the political investments of one side or another, a massive piece of transformative legislation grows too big to fail and is somehow rammed through Congress without much concern for the parliamentary niceties that had up until that moment dominated the process. The Obama administration passed weakened versions of healthcare reform and financial regulation in this fashion but failed with cap and trade.
Most voters do not follow politics closely and hence remain largely uninformed about the precise nature of our system's dysfunction. This allows activists who work on specific issues to manipulate the process and shape legislation up to the final vote with hardly anyone paying attention. And although once upon a time partisans were satisfied to earn a legislator's nay vote, the new expectation has become to find a way to kill it.
Clearly, the secret hold that allows senators to delay business on any legislation for as long as they like deserves to die. The Senate has attempted to quash this practice. In a standoff that captures the absurdity of this body's method of self-policing, a 2006 bill to expose secret holds was itself the victim of a series of secret holds. To quote Oregon's Ron Wyden from the floor debate, "That pretty much says it all." Eventually, the Senate did pass the Honest Leadership and Open Government Act, which purported to end secret holds and demanded that senators stand by them in public. But, true to form, the act lacked any credible enforcement mechanism. It will likely change nothing.
A more effective tack would be to remove the fiction of proxy holds from the Senate rules. New rules might require any senator who issues an objection on the Senate floor to take public responsibility for the hold by the end of that day's session unless another senator asks to be credited in his stead. This would ensure that any senator listed on a controversial hold could force a colleague to take the heat for it or withdraw the hold. It is hard to imagine that the targets of many recent holds would be able to withstand this test. For instance, the obstructionism of Oklahoma Republican Tom Coburn was finally overcome by a time-consuming series of procedural votes scheduled by Harry Reid and Co. to pass a food safety bill late in the 111th Congress; but it would never have happened without the luxury of a lame-duck Congress.
Bringing holds out into the open would subject them to public accountability and backlash. But the undemocratic ability of a single senator to stop most Senate business would remain. Apart from the unanimous consent procedure, party leaders generally choose to honor holds as evidence of a senator's threat to filibuster (even in cases where it seems obvious that a senator has little intention of making good on the threat). Countering that gridlock requires addressing the filibuster itself. Although rules surrounding filibusters are arcane, effective reform need not be. The key objective must be to preserve the legitimate tactic of reasonable delay by a dedicated minority to provide for more debate, more information and more public awareness about proposals that could soon carry the force of permanent law while preventing purposeful and permanent obstruction of majority rule. For example, the Patriot Act, which sailed through Congress in just four days during the panic after the September 11 attacks, would clearly have been a better law if a group of senators had been able to ensure that its most controversial aspects got a more thoughtful and thorough hearing.
In a surprising development in late December, every returning Senate Democrat signed a letter circulated by Carl Levin of Michigan and Mark Warner of Virginia urging changes in the way the filibuster is conducted. One likely change will be a prohibition on senators attempting a filibuster before a bill reaches the floor, unless they can demonstrate the support of at least forty of their colleagues, and they would have to remain on the floor to sustain it. This would ensure that "filibusters...be conducted by people who actually want to block legislation instead of people being able to quietly say 'I object' and go home," according to Missouri Democrat Claire McCaskill. The changes, which are being spearheaded by the newer members of the Democratic Caucus over the objections of some of their elders, like the retired Chris Dodd of Connecticut, may also include a vote in favor of the proposal put forth by New Mexico Democrat Tom Udall to require a mere majority to change the Senate rules at the beginning of the session, rather than the current need for a two-thirds majority; this vote will occur on January 5, as this article goes to press, at the opening of the 112th session. If the filibuster cannot be avoided, Senator Tom Harkin has proposed a series of measures to ensure that it does not go on forever. He has suggested a gradual approach to grinding down the number of votes required to end a filibuster to a simple majority. An opening vote to "break" a filibuster would still require sixty votes, but a second motion following a forty-eight-hour delay might need only fifty-seven votes, and so on. The number needed would eventually reach fifty-one. Ultimately, the majority would rule, but the minority would retain the opportunity to delay that victory and draw attention to its concerns in the process.
The reforms for these structural constraints, however, are hindered not only by the structural constraints themselves—like the Kafkaesque secret hold on a bill to ban secret holds—but also by the character of the reform constituency. It's not easy to persuade incumbents to reform the system that they have worked so hard to game. As Newsweek columnist Ezra Klein notes, "They've got donor networks, relationships with lobbyists, corporate friends, and activist groups that will help them. Their challengers don't."
What's more, it can be awfully difficult to get media attention for process and precedent. And it's a rather significant challenge to convert the public disgust with Washington and concerns about corporate corruption of politics into informed support for procedural proposals that operate at least one layer apart from policies that affect people's lives. Finally, it is no simple matter to persuade good-government liberals to play the kind of hardball required to win the fights these reforms inevitably involve.
The severity of our political crisis may change some of these dynamics. For example, an unusual alliance of twenty-seven high-dollar donors went "on strike" for the first time in 2010, pledging to withhold donations from candidates unless they supported a public funding system for Congressional races. "I'd rather have campaign finance reform than access," explained one of the members, Steve Kirsch, a businessman who says he funneled more than $10 million to back Al Gore in 2000. The effort was organized by Change Congress, a group founded in 2008 by political consultant Joe Trippi and activist/legal scholar Lawrence Lessig. So far the numbers have been tiny compared with the flood of private spending that is swamping our system—which is understandable, as this is an awfully risky strategy to pursue when the other side refuses to play along.