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.
Beyond the filibuster, the Senate also operates on a dramatically expanded system of senatorial holds—some secret, some passed around among members—that allow one senator or several to block action or nominations. Recently Richard Shelby pressured the Obama administration on an issue by putting holds on at least seventy nominations, with no particular objection to any of them. In February 2010 former Senator Jim Bunning set out to single-handedly block an extension of unemployment benefits already accepted by the leaders of both parties; when asked on the floor of the Senate to consider the hardship he was causing the unemployed, Bunning responded, “Tough shit.”
In 2011 Republican senators used the nomination nullification strategy to try to undo existing legislation. They would not permit a vote on any nominee to head the new Consumer Financial Protection Bureau unless the law was rewritten, forcing Obama to name Richard Cordray on a recess appointment. They also attempted to put the National Labor Relations Board out of business by blocking appointments needed to create a quorum. “It’s not about the person nominated,” says Merkley; “it’s just hamstringing the law as passed.”
In the 1960s, when the filibuster was mostly used to try to stop civil rights bills, there were only a few cloture votes in each Congress. In the 2007–08 and 2009–10 Senates, the numbers were 112 and ninety-one, respectively. At the beginning of the current Congress, 300 scholars petitioned the Senate, saying, “We, the undersigned, American historians, political scientists, and legal scholars, call upon our senators to restore majority rule to the United States Senate by revising the rules that now require the concurrence of sixty members before legislation can be brought to the floor for debate and restoring majority vote for the passage of bills.” One signer, Georgetown history professor Michael Kazin, commented recently about Phillips’s book, “In the Progressive Era, there was a sense that senators still had dealings with each other. In a sense, we might be worse off now.”
There’s certainly a much greater level of campaign contributions and spending, which fosters intransigence and obstruction. A century ago Phillips asked, “Who pays the big election expenses of your congressmen, of the men you send to the legislature to elect senators? Do you imagine those who foot those huge bills are fools? Don’t you know that they are sure of getting their money back, with interest, compound upon compound?”
And that was before television, and before the 2010 Citizens United Supreme Court decision, which opened the gates to corporate funding. In 1906 Phillips actually saw good possibilities in the proposed Tillman bill, which would “prevent corporations from making money contributions in connection with political campaigns.” The bill was passed in 1907, but after a century on the books, it was part of the settled legislation attacked by the Court in Citizens United. Shortly after that decision, Justice Clarence Thomas charged, “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.” While Ben Tillman was indeed a vicious racist, he also hated corporations and railroads. Historians, like his contemporaries, concluded that Tillman’s feelings about corporations and contributions were heavily economic. Phillips considered “honest Ben Tillman” one of the few heroes in the Senate.
But as Phillips noted, in words that fit the Washington of today at least as closely as that of 1906, “How politically careless we have been, how short-memoried, how credulous of words and neglectful of deeds, how easily tricked by cunning appeals to prejudice!”
If we just focus on the specifics of “The Treason of the Senate,” it is possible to think our situation now is entirely different. We’re no longer fixated on railroad rates, and our politics doesn’t revolve around the wool tariff. The details of the income tax code, a great obsession of today, weren’t an issue in 1906—there was no income tax until 1913, when the Sixteenth Amendment established it. But Phillips’s fundamental indictment of the Senate as a body structured to protect established wealth by preventing popular legislation and blocking reform-minded nominees has outlasted such issues as Oklahoma statehood and colonizing the Philippines. The current acceptance of a supermajority requirement for Senate actions, its use to block or delay confirmation of judicial appointees, and the new strategy of blocking any appointees to authorized government bodies to keep them from functioning can make today’s Senate as undemocratic as the state-legislature-elected, no-conflict-of-interest-rules Senate of 1906.
“Treason,” then and now, is a word that makes people nervous. But it’s not hard to see the current operation of the Senate as fundamentally subversive of democratic government. “The most recent obstruction escalation amounts to outright nullification—a partisan assault against republican governance,” argues Catholic University law professor Victor Williams. “Scores of critically important federal posts are purposely kept vacant for months and even years; the government is purposely hobbled.”
In many ways, the Senate of today doesn’t look all that different from the body observed by David Graham Phillips. “It is easy to see, by observation of the known policy and settled attitude of the Senate,” wrote the editors of Cosmopolitan magazine in the March 1906 introduction to the series, “that it is not the ninety-nine but merely the one percent that is really represented by that sedate and decorous body.”