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Is the Senate Really Paralyzed and Dysfunctional?

Via Bouie, Elizabeth Drew says:

It's time to retire the overused — and inaccurate — words "dysfunctional" and "paralysis" that have appeared in a recent spate of articles and commentary propagating the fashionable view that the current Congress has gotten little or even nothing done. In fact, this has been one of the most productive Congresses in decades. 

I think it's clearly correct to say that the 111th Congress was extremely productive (see also last month's similar defense of the Senate from Jill Lawrence), and so I agree that "paralysis" is the wrong word to use to describe it. The question, however, is whether "dysfunctional" is correct.

First, I'd say the Senate could certainly be both productive and dysfunctional -- it's possible that the particular rules in place don't so much prevent action as distort it. To one extent, I think that's somewhat true; current Senate rules and norms encourage fewer, bigger bills, and one could certainly argue that the quality of lawmaking suffers (and, yes, Superbill! might produce fewer, even bigger, bills, although it's also possible that the threat of Superbill! might lead to smaller bills passing with fewer than 60 votes). And as Jamelle Bouie points out, legislating isn't the Senate's only responsibility, and the statistics for confirming nominations are harder to justify. Of course, if that's a problem, it could be solved without changing the rules on legislation.

As I think about it, however, it seems to me that the real question that's driving people to support reform isn't so much what's happened in the 111th Congress, but what it suggests about the possibility of Senate action after a slightly less extreme landslide. What would have happened had the Democrats had only held 56-58 seats over the course of this Congress, instead of 58-60? 

That's not a rhetorical question. One possibility is that Democrats would still have moved their agenda after compromising with the 3rd or 4th or 5th least conservative Republican, instead of either having to compromise with Ben Nelson or the Senators from Maine. In other words, the Senate works fine, as long as you accept that what really matters is the 60th vote, not the 51st vote. However, there's another possibility: that polarization and strong partisanship mean that the majority party will not be able to get anything done that requires more than (at most) a couple of minority party votes. I think that would truly count as dysfunctional: if a minority party was unified enough against a 55, 56, or even 58 member majority that it could simply prevent anything from passing. A lot of liberals believe that this describes exactly where were are today. In that reading, Republicans are dedicated to stretching the rules to their fullest with a strategy of rejecting every Democratic initiative, in order to make the Dems unpopular and thus retake control, even if it damages the nation. On the other hand, there's the reality that for two of the Democrats' biggest achievements, the stimulus bill and banking reform, marginal Republicans did, in fact, provide the needed votes. And as for blocking nominations, Republicans have to date failed to act in a unified bloc to prevent cloture on any of Barack Obama's nominees. Unfortunately, it's impossible right now, at least as far as I can see, to determine which of these pictures is accurate.

Of course, for strict majoritarians none of this matters; for them, the Senate should simply function by majority (party) rule, and any deviation from that is not justified. Neither Drew nor Lawrence speak to that. For those of us who either have doubts about simply majority party rule, or who believe that the structure of the Senate makes it very likely that individual Senators will retain power whether that's justified or not, then it matters quite a bit whether "dysfunctional" fits or not. If a Republican landslide is on its way, we won't find out soon, because Senate procedures probably won't matter nearly as much under divided government. If, however, the Democrats avoid that fate and return a tiny majority in the House and a modest one in the Senate, then we'll start to see just how dysfunctional (or not) the Senate really is. And if it turns out that, say, 55 Senators cannot act by themselves and cannot find negotiating partners for cutting deals, then for those who do not want a Senate eventually ruled by simple partisan majorities, embracing the status quo won't do.