Shutdown saga sparks debate about how to fix 'broken' Congress

Ideas such as ending the filibuster are floated as lawmakers consider whether a deliberately cumbersome system of checks and balances, designed to forge compromise, truly remains viable in today’s highly polarized environment.

On day two of the government shutdown, Sen. Tammy Baldwin (D) of Wisconsin concluded her floor speech with a broad indictment: “The biggest problem we face right now is that Washington is broken,” she said.

This latest impasse may have been resolved – for now – as Democrats and Republicans reached a deal to reopen the government for three weeks, in exchange for addressing a host of other issues, and a promised vote in coming weeks on immigration.

But with two partial government shutdowns in four years, a budget that has been limping along on temporary extensions, searing partisanship and unresolved pressing problems, it’s hard to quarrel with the Wisconsin senator’s conclusion that the nation’s capital is dysfunctional.

Still up for debate is how to fix it. President Trump and many Republicans, especially in the House, think the answer is to change the rules – specifically by getting rid of the 60-vote threshold in the Senate, or the filibuster. 

Others argue it’s not the process, but the people – the lawmakers, the president, the parties, the outside pressure groups – that are the problem.

Sen. Lisa Murkowski (R) of Alaska observes that the rules have changed very little in the 15 years that she’s served in the Senate. What’s different is the way lawmakers today use those rules.

“There has been greater comfort by members to use the rules to slow, to delay, to grind the gears in a way that is not constructive,” she says.

Bipartisan efforts

Over the past few days, Senator Murkowski was part of a bipartisan effort by 25 senators – a quarter of the Senate – to operate more constructively. Known as the “common sense coalition,” the group met in “little Switzerland,” the office of Sen. Susan Collins (R) of Maine to try to find a way to end the shutdown. Senator Collins assembled a similar group to help end the shutdown of 2013.

Democratic leader Chuck Schumer of New York on Monday credited the group with helping to resolve the impasse. “I believe that this group has the potential to return the Senate to the kind of place it should be,” he said on the Senate floor. “A place for bipartisanship. A place for action. A place for achievement.”

Still, it remains a question whether the deliberately cumbersome system of checks and balances, designed by the Founding Fathers to forge compromise, can truly remain viable in today’s fast-paced, highly polarized environment.

Going into this shutdown, the left exerted enormous pressure on Democrats to stand their ground on protecting the young, undocumented “Dreamers” who were brought to the US as children, and to link the issue to the budget deadline to force a solution. After the deal was announced, some outside groups accused Senator Schumer of “caving,” pointing out that he only secured a promised vote in the Senate, not a guarantee to protect Dreamers.

In the 2013 shutdown, it was the GOP’s base that insisted on tying efforts to defund the Affordable Care Act to budget negotiations. Then, too, hardliners ultimately failed to get what they wanted from the shutdown.

Increasingly, lawmakers seem to be trying to craft deals to satisfy their party’s fringes – as opposed to focusing on finding middle ground. The White House appears to be letting hardliners such as Sen. Tom Cotton (R) of Arkansas and others in and outside the White House take a lead role in immigration negotiations.

“The president has consistently said he wants to make sure Tom Cotton and I can embrace a deal that he cuts, and I trust him at his word,” Rep. Mark Meadows (R) of North Carolina told reporters last week. Congressman Meadows heads the hard-right House Freedom Caucus.

Disagreement over filibuster

Meadows and many other Republicans in the House would just as soon get rid of the filibuster in the Senate, which they see as blocking the will of the majority.

On Sunday, Mr. Trump again tweeted his support for canning it, saying Republicans should take the “nuclear option” and go to a 51 vote threshold for legislation, and pass a budget (they already have a simple-majority rule for approving executive branch nominees, federal judgeships, and Supreme Court nominees).

“I for one would love to see Mitch McConnell do away with the filibuster, and then America would truly hold Republicans responsible for these decisions,” Rep. Chris Collins (R) of New York recently told reporters.

Those in favor of ditching the filibuster for legislation point out that it’s not in the Constitution. That’s true, says former Senate historian Don Ritchie. But what is in the Constitution is the ability of each chamber to write its own rules.

Originally, he explains, each chamber had nearly identical rules, based on the British parliament. But the House was designed to be closer to the people, whereas the Senate is meant to cool the populist impulses of the House – and over time, Senate rules evolved to give a lot more power to the minority party. That’s partly because a majority of senators represent a minority of the population, says Mr. Ritchie.

And the Constitution reflects the difference between the chambers and the need to give the minority party a voice. It requires a two-thirds Senate vote to convict in the case of impeachment (which only requires a majority in the House), as well as for overturning a presidential veto or ratifying a treaty. “The Senate has always understood you need a supermajority to get things done,” says Ritchie.

Many senators strongly resist the idea of getting rid of the filibuster – including Senator McConnell, the Senate majority leader. Despite Trump’s stand, there are not the votes now to do away with it.

“I think it is important that the Senate operate with a 60-vote margin on the critical issues that face our nation because it forces us to work together,” says Senator Baldwin in an interview. She says one reason the Senate is at a standstill over the budget is because in the last year, Republicans have become “too accustomed to running the Senate like the House” – using special rules that require only a majority vote.

In a way, the filibuster is needed more than ever, she says. Many of the conditions that helped lawmakers forge compromise in previous eras no longer exist. She points to the practice of committee chairs and ranking members holding weekend potlucks for committee members and their families – no longer possible now that most members return to their districts every weekend.

Murkowski, too, defends the filibuster. “If we are to change our rules to make it easier to overrun the minority, you really have lost the framework of what the Senate was established to help provide,” she says.

Tweaking the power-balance 

But that doesn’t mean that the Senate’s internal operations couldn’t use a good tweaking. In the bipartisan meetings in Collins’s office, a “sidebar” conversation emerged about how spending bills are handled, Murkowski said. Bringing such bills to the floor for debate is subject to the 60-vote threshold. Because the Senate can’t clear that threshold to even bring these bills to the floor for consideration, it is failing in its most basic job.

According to Murkowski and other lawmakers from both parties, there seemed to be bipartisan interest in narrowly changing the filibuster rule just to be able to proceed to debate on spending bills.

After the Senate moved toward reopening the government on Monday, Sen. Joe Manchin (D) of West Virginia, said he’d like to see another rule change. The leaders of the two parties have too much power to set – or block – the agenda, given the size of the “common sense coalition” that was so instrumental in pushing McConnell and Schumer to end the shutdown.

“I don’t believe that either leader on either side should have the powers that they have … to be able to set an agenda or stop an agenda, when you have a force as strong as ours,” he told reporters at a joint press conference with Senator Collins.

“They listened. And that’s what moved it,” he said. “Because we weren’t backing off.”