Who Stole the American Dream? (44 page)

Average Americans frustrated by the eternal gridlock in Congress have no idea of the machine-gun frequency with which the filibuster—or the threat of a filibuster—is exploited. This is mainly because voters do not see live filibusters. The Senate long ago found a way to sidestep the televised drama of marathon filibusters like the one Jimmy Stewart staged in Hollywood’s
Mr. Smith Goes to Washington
or the twenty-four-hour, eighteen-minute talkathon by
Senator Strom Thurmond, the die-hard segregationist from South Carolina who defied biology and a Senate majority to block a civil rights bill in 1957.

To avoid tying up the Senate full-time in prolonged filibusters with senators sleeping in their offices, former Senate majority leader Mike Mansfield devised a two-track procedure in the 1960s. On one track, the Senate proceeded with normal business, while on a second track it took a quick test vote to see if it had a sixty-vote majority to invoke cloture. If the majority leader lacked the sixty votes, that bill was deemed dead on arrival. No fuss, no muss, no vote—not even a debate. Voters rarely realized that a bill had been killed by a phantom filibuster.

What this meant was that a minority of forty-one senators—and often fewer than that—could prevent a majority of fifty-nine from even bringing up a bill for debate. In practical terms, said Senator Tom Udall, a New Mexico Democrat, “every vote in the Senate now is sixty votes, which is what you need to cut off the debate. The will
of the majority can be blocked by a minority.
You have
tyranny of the minority
—and the public doesn’t even realize it.”

What’s more, because the Senate operates under the rule of
unanimous
consent to bring up any bill, a single senator can block action by invoking a “personal hold”—long known as “
the silent filibuster” because the senator did not have to identify himself or utter a word in public. The senator could set up a legislative blockade by sending a private written notice to the leadership of intention to filibuster a bill or a presidential appointment. A hold stopped the action because it forced the majority leader either to drop the proposal, make a backroom deal, or go through the Sisyphean task of scouring up sixty votes and using many hours of precious floor time to apply cloture. A silent filibuster was, in effect, a one-senator veto.

Originally, personal holds were granted as a courtesy to a senator who was ill, was out of town, or needed more time to consider a measure. But in the modern era of partisan combat, holds are used routinely to tie the majority in knots or to extract some concession from the White House or Senate leaders on an unrelated measure. As Norman Ornstein explained, “
A hold is a hostage-taking weapon for individual senators.”

Today, filibuster tactics are used across the board, and particularly on economic issues such as health care and taxes. “The statistics just blow you away,” commented Tom Mann of Brookings. “
The use of delaying tactics has just skyrocketed. In the 1960s, about 8 percent of significant legislation was subject to delaying tactics like filibusters and holds. It is now about 70 percent. Obstructionism is now the hallmark of the Senate.”

With the escalation of filibuster tactics in the early 1990s as Republicans waged partisan warfare against President Clinton, Mann pointed out, the Senate has become the graveyard for legislation
passed by solid House majorities. Hundreds of House-passed bills have been “
condemned to death-by-filibuster.”

As reform-minded senators have pointed out, the
Senate has become such a bottleneck that the 2009–10 Congress was unable even to pass a normal budget bill or just one of the thirteen appropriations bills needed to fund the normal operations of the government. For years, those bills had routinely passed the Senate. Now, it takes emergency, cliff-hanging, eleventh-hour deals to get minimal routine work done.

So crippled has the Senate become—and Congress as a whole—that Thomas Mann and Norman Ornstein titled their major study on Congress, in 2008,
The Broken Branch
, and its sequel, out this year,
It’s Even Worse Than It Looks
.

Many people assume that the Senate filibuster is a constitutional prerogative, but neither the filibuster nor the personal hold is mentioned in the Constitution.
These procedures have evolved over time through changes in Senate rules.

Historians tell us that the
filibuster came into being by mistake. In 1805, as the Senate was codifying its rules on the advice of Vice President Aaron Burr, it accidentally omitted a rule for proceeding to its agenda, as the House does, and unknowingly, by default, that omission allowed extended debate. Only in 1917 did the Senate pass a cloture rule to have a formal way for cutting off debate. That backfired. Because of the very high threshold for cloture (then, a two-thirds vote of the Senate), the cloture rule worked perversely. It seemed to sanction filibusters. Senator Mansfield’s two-track strategy backfired in the same way. It no longer took an actual filibuster to stop Senate action. A phantom filibuster did the trick.

To curb the use of phantom filibusters, reform-minded senators argue that the actual filibuster should be brought out of the closet and exposed to public scrutiny. They reason that the voters, already
angry at congressional gridlock, would be even more fed up if forced to watch live filibusters tying up the Senate for weeks on end, and that might be a deterrent. In January 2011, twenty-six senators led by Democrats Jeff Merkley of Oregon, Tom Harkin of Iowa, and Tom Udall of New Mexico pushed for rule changes to bar some of the procedural delaying tactics. They persuaded the Senate to vote for a ban on the silent filibuster—the anonymous hold. But they failed to win a majority for a more important change—
to bar filibusters on the procedural motion to bring a bill to the floor for debate and to eliminate Mansfield’s old two-track procedure.

“
We want to force a talking filibuster,” explained Udall. “We want to get to the substance and not get stuck on procedure. A talking filibuster means that you would have to come to the floor and actually talk—talk as long as you wanted
on the issue
, which is the way it always had been, and then we would move to cut off debate and have a majority vote.” That rule change failed to pass in January 2011, but reformers say they will try again.

Gridlock is not merely Washington’s worry. It has real-life impact on the nation’s economy and on the wealth gap. When Congress is polarized by partisan warfare and crippled by phantom Senate filibusters, budgets fail to pass and programs that are intended to help average Americans and strengthen the social safety net get stranded. Gridlock protects the status quo at a time when most tax laws and other economic legislation favor corporations and the wealthy—as people saw in 2010 and again in 2011 when President Obama tried to raise taxes on the top income bracket.

Political scientists have documented a link between polarized politics and rising economic inequality. The ever-increasing wealth gap and ever-sharpening partisan divisions go hand in hand. Over the past century, the two trends have moved up and down together, according
to the authors of
Polarized America
, political scientists Nolan McCarty, Keith T. Poole, and Howard Rosenthal.

Graphs of
the two trends overlap almost perfectly. In the early twentieth century, before the Depression of the 1930s, the income share of the top 1 percent in the country was at its peak, more than 24 percent of the total, and the division between the political parties was sharp, according to McCarty, Poole, and Rosenthal. From the 1940s through the 1970s, during the era of middle-class power and broad bipartisanship, we had less income inequality in the period of the Great Compression. Since the 1980s, the schism between the parties has widened and so has the wealth gap.

There is ample evidence that the collapse of the political middle and America’s modern polarized politics have helped bring about policies that accentuate the nation’s wealth divide. These political trends have powerfully affected key pocketbook issues at both ends of the economic spectrum, altering the way the pie is shared among winners and losers in the American economy.

Two litmus tests are the minimum wage and the estate tax, each intended to narrow the wealth gap.

Not only does the minimum wage put a floor on the lowest American pay scales, but that floor exerts an upward push on average wages. Since the late 1960s, as the political middle shrank and business lobbies gained power, the real value of the minimum wage has fallen by more than 40 percent, despite consistent public support for a higher minimum wage.

That change is no accident. It reflects the new partisan politics.

Traditionally, liberals seek to raise the minimum wage and to cover as many workers as possible. Conservatives, arguing that the minimum wage artificially raises the cost of labor, have fought to
keep the minimum wage low and to limit its scope. From the 1930s through the 1960s, many moderate Republicans joined Democrats in supporting periodic increases in the minimum wage to help workers keep up with inflation. But in the Carter Congress of 1977, Republicans refused to index the minimum wage to inflation. After that, as inflation rose and eroded the purchasing power of minimum wage workers, their pay fell behind inflation. Finally, in 2007, Congress raised the federal minimum to $7.25 an hour, or full-time yearly pay of $15,080—but that is still 15 percent
below the real value of the federal minimum back in 1968. In 2005,
twelve states passed state minimum wages above the federal level, and
eight of them, from Ohio to Arizona and Florida to Washington, have boosted their minimum wage again in 2012 by indexing it to inflation.

At the other extreme, the estate tax on inherited wealth, which affects only the richest 2 percent of Americans, has shifted increasingly in favor of the super-rich. The tax was established under President Woodrow Wilson in 1916, and until the mid-1970s, it imposed a levy of 77 percent on estates over $250,000. Anti-tax conservatives have fought to lower or abolish the estate tax, while political moderates and liberals supported the tax. In 1976, the exemption from the estate tax was raised to $1 million, adjusting for inflation, and under President Reagan, the estate tax rate was cut to 55 percent.

But President George W.
Bush made the big changes in 2002. He passed a bill to phase it out entirely, reducing it in stages from a 55 percent rate in 2001 to zero in 2010, saving the super-rich $186 billion in taxes.

With the Bush cuts due to expire in 2011, President Obama proposed in December 2010 to restore the old pre-Bush tax rates (55 percent on estates over $1 million), but congressional Republicans blocked him.

Gridlock was the ally of the wealthy. With the Senate filibuster rule working for Republicans, they refused to extend Bush’s tax cuts for the middle class unless Obama agreed to extend Bush’s tax cuts for the rich, including a 35 percent cap on the estate tax rate and a
tax exemption for estates worth $10 million for couples instead of the old pre-Bush rate of 55 percent on estates larger than $3 million. To break the gridlock, Obama had to accept estate tax cuts for the rich.

Those two policies—the failure of an increasingly polarized Congress to help the working poor and lower middle class by indexing the minimum wage to inflation and congressional approval of ever more generous estate tax cuts for the super-rich—have contributed to the great economic divide in America today. They illustrate the economic costs of polarized politics.

“
The fight over estate tax repeal seems uniquely symbolic of the skewed class politics of the New Gilded Age …,” commented Princeton University political economist Larry Bartels. “To protect the inherited wealth of multimillionaires seems perversely contrary to the interests of the 98% of American families whose estates will never reach the threshold for taxation. How could a democratic political system arrive at such a policy?”

Good question.