It would not have surprised David Graham Phillips that Barack Obama couldn’t get the Senate even to vote on confirming Elizabeth Warren—or anyone else—to head the consumer protection office she had devised. “The Senate is the most powerful part of our public administration. It has vast power in the making of laws,” wrote Phillips in 1906. “It has still vaster power through its ability to forbid the making of laws and in its control over the appointment of the judges who say what the laws mean.”
In a series of articles called “The Treason of the Senate,” which led Theodore Roosevelt to help coin the phrase “muckraking” and helped the drive for the popular election of senators, Phillips argued that senators elected by legislatures represented private interests rather than the voters. He linked the Senate situation to an economic situation that today seems oddly familiar: “That there has been in the past quarter of a century an amazing and unnatural uppiling [his word] of wealth in the hands of a few; that there has been an equally amazing and unnatural descent of the masses, despite skill and industry and the boundless resources of the country…that the massing of wealth and the diffusion of dependence are both swiftly increasing.”
Declared Phillips, “The Senate has always cheerfully voted money for the building of warships, for coast-defense works and heavy armament for the protection of the people of the nation against foreign aggression. But the question now arises: Who is to protect us from the Senate?”
We now elect senators by direct popular vote rather than the vote of state legislatures, thanks to the Seventeenth Amendment, ratified in 1913. But increasingly, the question is the same. In 2012 as in 1906, the Senate is structured to resist the popular will. Today it’s not because of financially manipulable state legislators but because a minority of forty-one senators can and does keep anything from passing or any appointee from being confirmed. The new roadblock is doubly undemocratic considering that, as Senate historian Donald Ritchie points out, several states with a combined 20 percent of the population can elect a majority of the Senate.
It’s an obstruction Phillips might have recognized immediately. “When you have this supermajority barrier,” explains Senator Jeff Merkley, “powerful interests are much better prepared to get something passed because they can do what Wall Street does—hire thousands of lobbyists. Acts for the people are much harder to achieve. You have a situation where people vote for change but it can’t be passed.”
Beyond the Senate’s increasing inability to pass popular legislation, it now resists confirming nominees to carry out existing law. Conventional wisdom in Washington holds that both parties practice obstruction. But as People for the American Way points out, “President Obama’s circuit court nominees have waited an average of 136 days for a vote from the full Senate after approval from the Judiciary Committee, in contrast to an average of 30 days for President Bush’s nominees.” This has produced a 10 percent federal court vacancy rate, with thirty-three designated by the courts as judicial emergencies.
As Ritchie notes, enforcing long delays on votes even for nominees unanimously endorsed by the Judiciary Committee is also “a tactic to let the clock run down so you can’t do anything else.” In Obama’s first Congress, with the Democrats in control of both houses and the White House for the first time since 1994, more than 300 bills passed by the House were never considered by the Senate.