The Congress That Couldn't Adjourn

THE 103rd Congress, facing the voters next week, was so gridlocked it could not even adjourn. Instead, it returns later this month, lame ducks and all, to try again.

The main agenda item will be implementing United States membership in the newly strengthened General Agreement on Tariffs and Trade. Since this is a matter of real importance, why is it being handled in a lame duck session?

One answer is that this was a way for members to avoid voting on it just before an election.

A more important reason is found in the perverse rules by which it takes a three-fifths majority to control the Senate. This is a classic demonstration of the law of unintended consequences; it has to be fixed if the government is going to work. The Senate got itself (and the country) into this mess because of the contortions needed to bring an issue to a vote. Until well into the 20th century, the Senate could end debate only through unanimous consent - or exhaustion.

Historically, this power of endless debate was rarely used to block a vote except with respect to matters of transcendent importance to a particular group of senators. The power began to erode when people began to abuse it.

In 1917 a group of 11 senators, led by Robert LaFollette of Wisconsin, blocked action on a bill sought by the Wilson administration to arm American merchant ships against the German threat of unrestricted submarine warfare. Wilson denounced the ``little group of willful men,'' and armed the ships anyway under authority of a long-unused statute of 1797. Sen. LaFollette suffered no political ill-effects; but concern over the perceived abuse of Senate rules led to mild circumscription of unlimited debate. A new rule was adopted whereby debate could be ended by a two-thirds vote. After the admission of Hawaii to the union in 1959, this meant 67 votes, if all senators were present.

Further abuse was perceived when southerners used filibusters against civil rights legislation in the 1950s and '60s. The rule was further tightened. As it now stands, debate can be ended by a vote of three-fifths of all senators (60, even if some don't vote). If the question concerns amendment of Senate rules, a two-thirds vote is still required.

The justification for this arrangement has not changed: to protect a minority from being peremptorily silenced and overridden, as is possible in the House of Representatives, on a matter that the minority regards as of major importance. The special protection was never intended to extend to all or even most issues that come before the Senate.

But that is what has been happening in recent years, and never more so than in this autumn of 1994 in the waning days of the Congress that could not adjourn. This has brought us to a position in which a party can organize the Senate with 51 senators, but no party can pass legislation without 60. The last time either party had 60 senators was 1977-78, when the Democrats had 61.

The Republicans mainly abused the rules in 1994. But the problem transcends party lines. The Democrats have done the same (though not on the same scale) when they have been in the minority. The protection of minority rights becomes a travesty when it results in the impotence of the majority.

There is a way around this. Let the Senate rules be amended to provide for the previous question. This is a parliamentary device to bring debate to a close simply by moving the previous question. The motion is not debatable and is decided by a simple majority. If it carries, the debate ends and the question is put. This device exists in every other parliamentary body known to this writer.

It could be adopted by the Senate in modified form. For example, it could be provided that the previous question would not be in order until debate had proceeded for a specified period. This means a period long enough to provide for thorough - though not obstructionist - discussion.

This proposal flies in the face of long-cherished Senate tradition. But so did the original cloture rule. So did its modification. Both the original rule and the modification came because of public outrage over abuse of the Senate's privilege of debate.

The public is outraged these days. Let the outrage find a constructive outlet. Let freedom of action be restored to the Senate.

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