No, The Jobs Bill Doesn't Highlight The Senate's Culture of Failure

Today The Washington Post carries an article entitled "Jobs Bill Highlights Senate's Culture of Failure."

According to the article:

The failure of President Obama’s jobs proposal highlights Washington’s current culture of gridlock, transforming the Senate from a balky, but functional, legislative body into a strange theater of failure.

As the premier Senate/Capitol Hill blog on the web, we feel compelled to respond to this terrible opinion piece in one of our nation's newspapers of record. Here's why we wouldn't change a thing about the Senate:

(1) The 60 vote threshold is absolutely necessary to protect minority rights.
We typically expect a majority party in the Senate to come in with somewhere between 51 and 60 seats. It would therefore be easy to pass and restrict debate on any measure solely with majority party votes. This may be OK in the House of Representatives, but our system of constitutional checks and balances requires that somewhere in the legislative system there should be an opportunity for the minority party to be heard. The 60-vote threshold forces the majority party to moderate its bills and negotiate with the minority party. It puts greater emphasis on individual moderate Senators in both parties. Like anything else, the failure of the Senate is a failure of politics and human nature. Don't blame an institution that preserves vital safeguards. Remember - everyone is in the minority sometimes.

(2) There is nothing particularly legitimate about a 51 vote victory.
We talk about 51 votes as if it is the essence of democracy and representation. Not true. Think about it - what would be the most legitimate form of representation? It would be unanimous consent, where every single voice counted in the outcome. That would be 100 votes in the Senate. Now, on the other end of the spectrum, what would be the most efficient outcome that still involved "most" of the voices? It would be 51 votes. The 51 vote margin has not been endowed with any particular legitimacy. The Senate rightly balances legitimate consensus and efficiency with a 60 vote margin. This is American democracy. It SHOULD be hard to pass a bill.

(3) The House of Representatives is always more obstructionist than the Senate.
People who dislike the way the Senate operates often call it obstructionist and point favorably to the House, which appears to consider everything quickly and with an up or down vote. In fact, the House is more obstructionist than the Senate. Most people don't realize it because obstruction in the House of Representatives is built into the rules and happens before anything reaches the floor.

Want to know how you pass a bill in the House of Representatives? First, you can use unanimous consent, which obviously requires complete consensus and is used very infrequently. Secondly, you can use suspension of the rules to pass uncontroversial measures such as naming post offices, which requires a two-thirds vote of the entire House of Representatives. But if you want something considered with a majority vote on the floor of the House of Representatives, you need to go through the House Rules Committee. This is a committee consisting of 9 members of the majority party and 4 members of the minority party. The committee is tasked with reporting a "rule" for each piece of legislation that it likes. This controls the time for debate and exactly what amendments may be offered. The amendments are often the only chance for the minority party to be heard on a bill, but the committee can completely lock the minority party out of the amendment process through a "closed rule."

So, compare this with the Senate. In the Senate, you can use parliamentary procedure to be heard, but a measure that has 60 votes will pass. This is 60% of the whole Senate. In the House, to get majority consideration, you need to get approval from a committee that has 9 loyal members of the majority party and only 4 members of the minority party before even reaching the floor. This is about 70% of a committee that is practically an arm of the Speaker's office. This renders individual representatives and members of the minority party effectively pointless.

To us, this looks more "obstructionist" than Senate behavior.

(4) There was somehow something wrong or illegitimate about the failure of the American Jobs Act in the Senate yesterday.
The Washington Post's article comes in the wake of the failure of the American Jobs Act to clear the 60 vote cloture rule. But what is surprising about this? Senate Democrats surely knew that they couldn't get the 7+ additional Republican votes to pass a version of the American Jobs Act that they didn't really negotiate with the Republicans. Yesterday's move was supposed to put Republicans on the record in opposition to the American Jobs Act so that Democrats could campaign against their votes.

Further, it's not fair to single out the Senate's "culture" and rules because of yesterday's failure. How far do you think the same bill would have gone in the House of Representatives.

Opponents of the Senate must take a closer look at the reality of Congress and learn to respect the traditions of the world's greatest deliberative body.