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Appeared in: Volume 8, Number 4
Published on: February 12, 2013
A Senator’s Lament

Filibusters, the foibles of the Senate, and the trials and tribulations of campaign finance reform.

This past December, Francis Fukuyama sat down with former Wisconsin Senator Russell Feingold to talk about the meaning of the 2012 elections, the trials and tribulations of campaign finance reform, and more.

Francis Fukuyama: Senator Feingold, thanks very much for talking with The American Interest. There are two related sets of questions I’d like to ask you in light of the recent election, one about the potential realignment of American politics and one about institutional issues. I come to these questions having read your recent book, While America Sleeps, and your other writings about American politics, where you’ve voiced concern about polarization and about the reasons for the inability of our political system to come to any major agreement on the fundamental issues we face. 

Let’s begin with the question of realignment. There are two ways to get past the kind of gridlock we’ve been faced with for some time now. One way is to reduce the polarization of the political class, but that doesn’t seem to be happening. The other way, which both parties had been hoping for, is that the American people will finally make up their minds and give one party or the other a big mandate—something like the realigning elections that happened in 1896 or 1932, in which the presidency and both houses of Congress go to one party. That hasn’t happened in the past several election cycles, and it didn’t happen this past November: We still have divided government. But do you think, given the underlying demographics of the country, that we may be in the process of a slow-motion realignment that eventually will give the Democrats long-term control? Do you see that happening, and if so, on what timetable? 

 

Russell Feingold: I do think it was a very significant election in terms of the future of American politics. It’s just short of a mandate, but it does suggest a realignment that reflects the growing diversity of the United States, which is an irreversible trend. I think Republicans know this: The politics of appealing to one demographic that was more traditionally the majority of U.S. voters is no longer workable. Both political parties, and any new ones that may emerge, will need to pursue a more inclusive kind of politics. I think that’s a very positive development, apart from the specific partisan ramifications. 

I also think it’s the kind of development that inevitably will lead to a demand for people to cooperate. The odds of either side winning and holding the House, the Senate and the White House at the same time are very slim, and if our system of government is going to work at all, the major players are going to have to get back into the habit of working together. So this is an exciting time, particularly because tactics were used against President Obama from the beginning of his presidency that were in my view extreme and unfair. The fact that that sort of attempt to deny a new President a honeymoon period failed is a good thing for future Presidents of both parties. If it had succeeded, it would have created a very harmful division in our politics. 

Even after their election victories, though, Democrats should take caution. If they want to call this a mandate, they can, but it’s not in their long-term interest to run roughshod over the Republicans. I don’t think that’s what the American people want. They’ve seen the results of a very harsh and negative approach in the past two years, and they don’t want it. They also don’t want one party to completely dominate the other in a way that tries to destroy that party. This is an opportunity for Democrats to show that they actually do want to work with Republicans as much as possible. 

 

FF: Just in the early reading of the maneuvering over the fiscal cliff, do you see any evidence that either the Obama Administration and the congressional Democrats or the Republicans are moving in that direction?

 

RF: I think this will be resolved in a reasonable way. First, this should not be considered the most important issue facing America. It’s important, but, as Tom Friedman pointed out, incredible things are happening in the Middle East. There are serious issues with Iran and in North Africa and elsewhere. The fiscal cliff is not the be-all, end-all issue of our time. It can be handled. The President has every right to demand that, given the election results, something approximating his vision of things be adopted. That means, perhaps, going back to the tax rates on upper-income people we had during the Clinton era. 

On the other hand, it’s very much in the interest of maintaining the American people’s confidence in their government that things be resolved in a way that does not involve actually going off the fiscal cliff. I think a bad deal is worse than no deal, but a good deal is better than no deal. In this case, I’m glad that the President is willing to negotiate, but he should hold firm on his position that those who make a great deal of money contribute more to help us solve our problems. 

 

FF: Let’s move on to the longer-term agenda. Beyond basic budgetary decisions about spending and taxes that have to be made in the short run, and presuming continued partisan polarization, you have developed an institutional agenda to make Congress more deliberative, more consenting and reasonable. Of course, the American political system, as deeply institutionalized as it is, is hard to change. Room for maneuver is limited. Do we just have to hope that the right leadership and the right political calculations emerge among our current group of leaders, or are there changes to the rules we can think of that would facilitate this?

 

RF: I absolutely believe this can be fixed. I don’t think our system is fundamentally flawed in the way it’s set up. That’s something people debate, but I still believe that the approach of our bicameral Congress and even some of the special rules in the Senate, if not abused, can work effectively to govern our country. There are some rule changes I’d be in favor of, particularly in the Senate.

Before I go into the specifics of that, however, I’ll say that my primary conclusion is that it’s really about whether the public demands a different approach, rather than specific little changes the political class can make of its own accord. The public should go back to demanding bipartisanship. When I first started working with John McCain on the McCain-Feingold bill in the 1990s, I remember going to a town hall meeting in Wisconsin—we did a lot of those—and when I announced that I was working with him people started cheering. I sort of teasingly asked, “Well, how do you know it isn’t a bill to ban the dairy industry?” Everybody laughed. The point is, there was a strong feeling in my state and, I think, in much of the country, that the public understood that politicians fight during the elections, but after they’re over, they say, “Look, we pay your salaries. It’s time to work together.” 

That spirit seems to have disappeared over the past three years, particularly with the advent of the Tea Party, to some extent, but an “us or them” mentality also grew on the Democratic side. I fear that this election has not resolved that. To the extent that Democrats just say, “See, we beat those guys—isn’t it great?”, this does not show recognition that one of the things people are upset about is the Tea Party’s instruction to their people to simply do nothing and allow nothing to happen. Again, the problem is not the structure of government. Politicians often aren’t the leaders; they’re the ones who follow and do what they’re told. The message they’ve been getting is, “stay on our side or we’ll call you a traitor.” Politicians fear being knocked off in a primary race by someone who is more conservative or more liberal than they are. The problem is not that people in Washington want to be extremists, but rather that they fear being punished if they don’t conduct themselves in a partisan way. 

My advice to voters is to grant a representative their vote this time, but if in two or four years he or she can’t point to any bills in which they paired with someone from the other party, refuse to vote for that person again. So it has to start with a strong public demand—which is a perfectly reasonable thing to expect to happen. Once that message is received members of Congress can adjust how things are done. 

Now, back to rule changes. The filibuster rule and cloture rule in the Senate are completely abused, as a matter of course. There was only one filibuster during Lyndon Johnson’s presidency; now it’s used on 70–80 percent of legislation. This is the complete opposite of what our Founding Fathers intended. The Founders, particularly James Madison, more than anything else feared factions—see The Federalist (No. 10). The Senate was established to avoid this. The routine use of filibusters and petitions for cloture is completely the opposite of how the Senate is supposed to work.

Having said that, it’s also true that the Senate should not be a purely majoritarian body. I like the idea that, as described apocryphally by George Washington, that the Senate should be a “cooling saucer” that checks what might be the purely majoritarian acts of the House. But it has gone so far away from that to being a body that doesn’t act at all. One of my students at Marquette University Law School said it’s not a cooling saucer; it’s a deep freezer. 

But let’s not throw out the baby with the bathwater. Let’s say, for instance, that instead of requiring sixty members of the entire Senate to cut off debate, it would be sixty percent of those present. That would change a great deal. Right now, someone can just inform the majority leader that he’s doing a filibuster, and the Senators don’t even have to be there. When the cloture rule began in 1917, it stipulated sixty percent of those present. So returning to this would have a big impact, because Senators like their weekends, and people won’t be so quick to set up a filibuster willy-nilly if Senators actually have to stick around to support it. I think something like that can have an impact but, again, it has to be a change of spirit and not just new rules in the body. Abuse of rules has served its purposes for a long time. 

 

FF: Right. How about other types of changes to the electoral system? My colleague at Stanford, Morris Fiorina, has been writing about how there actually isn’t nearly as much polarization in the American public as there is among politicians and the political class. The problem is really the distribution of the extremists. I think there are more of them at the right end of the spectrum than the left, at least as things stand now. But we have strongly partisan people at both extremes who represent, say, 25 percent at most of the public as a whole. But because of how electoral district boundaries are drawn, because of self-segregation in residential terms, because of the way the primaries are organized, and because of the very fragmented and compartmentalized media market, that small percent has much more influence than the 50 to 70 percent of voters in the center. So unless we change the rules for districting and perhaps have a different approach to primaries, we’re fundamentally not going to be able to call upon those reasonable voters who don’t espouse an extreme agenda and would like very much to reward bipartisanship. 

 

RF: I think it’s urgent that something change in this regard, and I’d say there’s almost a cornucopia of issues that need to be addressed. It’s the worst combination of problems I’ve seen in my lifetime. If the two major parties don’t want a third party challenge to emerge, they must address this. In many ways, those in the middle are the ones who feel the most disenfranchised. They’re not comfortable with what’s happening with either the Democrats or Republicans. Many of them feel like they had to make a Hobson’s choice in this election, and feel like neither party appeals to what they believe in. That means that mechanisms to make sure those on the extremes don’t always prevail are worthwhile. As you all know, experiments have started in California and elsewhere to have a system that would involve choosing not between the Republican and the Democrat who win the primary, but rather the two top candidates in a particular race.

Another thing we must do to avoid this extreme partisanship is reapportionment reform. When there are so many House districts that are completely safe, on both sides, the person who wins the primary tends to be the one on the more experienced side, the one who has kept the seat forever. Because the primary is the whole ballgame in those districts, many people are basically disenfranchised from picking alternative candidates for Congress for many years. 

We also have to take aggressive steps to make sure our voting system is repaired. It’s in disastrous shape. Not only are people trying to pass laws that potentially intimidate people from voting; we have the spectacle of huge lines of people waiting to cast ballots. People are starting to feel like the voting system is not credible anymore, or at least that it is losing its credibility. That has a very negative impact, when those who are serious about participating in the political system lose faith in the voting system itself. 

Of course, you won’t be surprised to hear me mention the importance of fundamental campaign finance reform, particularly overturning the Citizens United decision and getting into something along the lines of public financing. This is one of the best ways to avoid extremism, because those who are extreme will appeal to those elements of very wealthy interests that are willing to give them unlimited money. Average citizens want to participate in the process, but feel that the presence of unlimited, undisclosed contributions basically takes them out of play. I certainly hope the President includes action in some of these areas in his State of the Union Address, and makes it clear that they’re at the top of his agenda. 

 

FF: It’s interesting that a lot of these very wealthy donors, like Sheldon Adelson and those who funded other big conservative super PACs, didn’t seem to get much for their money from the November election. Maybe the public is more sensible, in terms of its ability to be bought, than some people have thought.

 

RF: They’re surely more sensible than Sheldon Adelson. I think that’s a really important issue. Some might say, well, things turned out well from the Democrats’ point of view, despite the money spent by their opponents. I think that’s only a tiny part of the picture. If you only look at how big money affects the political process from the point of view of who won or lost, you’re missing out on the corrupting aspect of all this. Think of the secret conversations being held, the candidates asking for millions of dollars. Or how businesses and corporations, or even unions for that matter, are pressed to give these contributions in situations where they really might not want to, but feel they have to in order to keep up with their competitors. 

The truth is that because both parties are in the tank with these huge contributions, no matter who wins our public policy is being bought off after the election. It has even happened literally in the halls of Congress. That kind of thing happened in the 1990s, before John McCain and I were able to stop party soft money. We had votes of, for example, 85–15, 90–10, where both parties were bought off on things like trade agreements, telecommunications, and, of course, the outrageous repeal of the Glass-Steagall Act, which had more to do with our economic collapse than anything else. It’s happening again, maybe worse than before. To me, you have to broaden the frame to see that in the long run, this will be crushing to our democracy.

 

FF: In light of not just Citizens United, but the earlier Buckley v. Valeo case from 1976, the Supreme Court has said pretty decisively that we’re not going to be able to limit campaign finance. Do we need to go down the route to a constitutional amendment in order to have serious campaign finance rules?

 

RF: I don’t think that you need to amend the Constitution. That’s something very hard to do. What you really need is a different Court. 

 

FF: Senator Feingold, I very much hope, with you, that Congress moves on to the institutional reform agenda during the next four years, and that all of those voters in the center who are tired of polarization are able to get better representation in the system. Thanks very much for talking to me, and I look forward to seeing you at Stanford this winter. 

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