The Drum

By Luke Freedman

How would legislation passed under Romney as president differ from legislation passed under a second term Barack Obama? Answer: Maybe not all that much.

The reason has nothing to do with the candidates political beliefs. The current system simply makes it inordinately difficult to get any bill to the president's desk. Even if one political party wins the presidency and both chambers of Congress this November, it still faces another virtually insurmountable obstacle: the Senate filibuster.

In its current form and application, the filibuster prevents the passage of any meaningful legislation.

This is worrying for Australians given the historical importance of the country's relationship with the US. An ally with an ineffectual government is an ally incapable of fulfilling its international duties and obligations. A 2009 cap-and-trade bill passed by the House ultimately ended up dying in the Senate, another casualty of the filibuster.

As such, it was monumental that Senate majority leader Harry Reid recently revised his longstanding defence of the filibuster in an impassioned speech on the Senate floor.

"If there were anything that ever needed changing in this body, it's the filibuster rules," Reid declared, "because it's been abused, abused, abused."

Reid hit the nail on the head. The US political system needs many adjustments, but few changes are as imperative as revising this parliamentary procedure.

The filibuster allows a senator to prevent a vote by indefinitely extending debate on an issue. In practical terms, this normally means the end of the road for a piece of legislation. Cutting off discussion is not impossible, but requires a supermajority of 60 Senators.

The Founding Fathers didn't intend this. The Constitution never mentions the filibuster. Rather, its foundations were laid in 1806, when Aaron Burr convinced the Senate to do away with its little-used rule allowing a majority of senators to end debate. The goal was to simplify Senate procedure, not create a new restriction on majority power.

Eventually, the seemingly benign rule change became a mechanism for blocking legislation. Still, Senators generally reserved this formidable tool for extraordinary circumstances, allowing most bills to pass by a simple majority.

Then in the wake of the 1992 presidential election, Senate Minority Leader Bob Dole broke with tradition suggesting Republicans use the filibuster to stymie President Clinton's proposed policy agenda. As public policy scholar Alan Ehrenhalt noted, these combative tactics "amounted to an unreported constitutional usurpation."

Subsequent abuse of the filibuster has been bi-partisan, but Republicans have been especially egregious over the past several years, threatening to block virtually any proposed legislation or appointments.

The result? Government positions left unoccupied, federal courts teeming with vacancies, and even the most benign pieces of legislation held up.

The filibuster exacerbates the fierce partisanship and disdain for cooperation that has become commonplace in Congress. Why compromise if you can veto all of the other sides' ideas?

And while conservatives might relish their current power to subvert president Obama's agenda it's not a viable strategy for long-term governance. The last time a party held 60 Senate seats was early 2010. Before that it was during the Carter administration in the late 1970s. It shouldn't take another Watergate or global financial crisis for one party to get the necessary votes to pass legislation.

The US faces a number of daunting challenges in the years ahead: high unemployment, an enormous national debt, rising health care costs. These are issues that need addressing, but solving any of these problems hinges on revising the use of the filibuster.

There are good reasons for Senate rules that guard against the worst excesses of brute majoritarianism. After all, George Washington once referred to the upper chamber as a "Senatorial saucer" that "cooled legislation."

Cooling the lawmaking process though, is a far cry from freezing it to a point where no activity whatsoever is possible. Lawmakers, but especially Republicans, have shown themselves incapable of exercising the sort of prudence and restraint the filibuster demands.

So what to do? The Constitution allows the Senate to "determine the rules of its proceeding." This means a majority of Senators can alter the filibuster when a newly elected Senate takes office in January 2013. This is the approach that Democratic senators Tom Udall and Jeff Merkley recommended at the beginning of the last term. It has also drawn past support from many Republicans, including former president Richard Nixon and current senator John Cornyn.

If Democrats still control the Senate come 2013, we can only hope Harry Reid remains committed to reform. Even if the Republicans end up in power, Democrats should refuse to be hypnotised by short-term political interests and remain willing to consider comprehensive changes to a broken system.