The Senate as a collective action problem
Most people know that the Senate can't do much of anything these days unless it can muster the votes to break a filibuster. What fewer people know is that the Senate also depends on unanimous consent for its non-controversial functions. And as the name implies, unanimous consent requires, well, unanimity. One senator can bring the whole thing down -- or at least make it take a while. As Ian Millhiser says, "it may only take 60 votes to get something accomplished in the Senate, but it takes 100 votes to do so quickly." And the Senate does not have nearly enough time to do everything slowly. If it can't function through unanimous-consent agreements most of the time, it can't function.
That, however, creates a dangerous incentive for individual senators: Given that the Senate cannot function without their consent, their consent has a lot of value. And that value can be traded for things they want.
We saw two examples this week. First, Sen. Jim DeMint vowed to block all further legislation that wasn't cleared through his office last night. He doesn't mean he'll vote against legislation that he doesn't have the time to review. He means he'll obstruct such that other members of the chamber won't be able to vote on it before they recess. If the procedure doesn't satisfy him, he'll use his power as an individual to stop the Senate, rather than his vote as an individual to express displeasure.
Across the aisle, Sen. Mary Landrieu has placed a hold on the nomination of Jack Lew to direct the Office of Management and Budget. The problem isn't Lew. "Mr. Lew clearly possesses the expertise necessary to serve as one of the President's most important economic advisors," Landrieu said. The problem is the administration's moratorium on offshore drilling. "I cannot support further action on Mr. Lew's nomination to be a key economic advisor to the President until I am convinced that the President and his Administration understand the detrimental impacts that the actual and de facto moratoria continue to have on the Gulf Coast," Landrieu explained.
Again, Landrieu is not using her vote to get her way. She's using her consent. If the administration doesn't fold, she can hold Lew's nomination through the recess, which means the president won't have a budget director at the precise moment when the Office of Management and Budget is beginning work on the 2012 budget. "Landrieu's hold is both absurd and irresponsible," raged OMB Watch, a nonprofit that's usually critical of the OMB.
There's always been a certain amount of this stuff in the Senate, but in recent years, both individual obstruction, as manifested through holds, and team obstruction, as manifested through the filibuster, are getting worse. We saw Sen. Richard Shelby hold all of the president's nominees because he wanted more pork for Alabama. We've seen Senate Republicans launch record numbers of filibusters. All of this procedural hardball has made sense for the players behind it, but it carries a cost: As this behavior normalizes, everyone will do it. The Democrats will filibuster everything Republicans attempt. Individual senators will place larger holds more frequently in an attempt to get their way, get some media, or both. And if everyone does it, the Senate falls apart.
On some level, the Senate has always been riven by a collective action problem. If the individual senators and the two parties use the rules in the way that are rational for them, the chamber can't function. But there've been norms that held both sides, and most senators, in check. As those norms dissolve and the payoffs of obstruction become clearer to everyone, the collective restraint that allowed the Senate to function breaks down. And then the rules need to change. That, of course, is why the Rules Committee has been holding hearings on the filibuster. We're rapidly approaching the point at which the people who benefit most from the chamber's strange procedures are going to have to face the fact that they've made it necessary for the Senate to get rid of them altogether.
Photo credit: Mark Wilson/Getty Images
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