This post started as a "gee isn't the Senate dysfunction" piece, but I don't think it really turned out that way; it turned into more of a "gosh it's complicated to define dysfunction" thing. With that in mind, two items in the news this week:
First, Matt Yglesias catches Chris Dodd saying that the Senate may not get around to confirming the Fed nominees, and calls the Senate "insane." I suppose one could pick holes in Yglesias's argument...if these nominations are as important as he thinks they are, then while a theoretical Senate could (as he suggests) spend twenty minutes on them, it wouldn't be especially responsible of them. One could...but I wouldn't. He's right. These are important nominations, and Harry Reid and the other 58 Democrats should bring them up and force votes. If Republicans want to drag it out, well, there are plenty of parliamentary maneuvers that Reid could use (or at least threaten to use) to keep the Senate moving -- he could move post-cloture time to a weekend, and he could consider the three nomination en bloc (that is, in one group, with only one cloture clock needed). Now, if the Republicans have 41 votes against confirmation, then Reid's hands are tied. But I know of no indication that there's any strong opposition to these choices. It's just a matter of the Democrats willingness to be as dedicated and creative in moving forward as some of the Republicans are in opposition. Senate rules are Senate rules, and I won't blame Reid for inaction when he doesn't have the votes. When he does have the votes, however, it's up to him to move the ball. So in that case I don't think formal reforms are either needed nor particularly helpful.
The other case is yesterday's example of (possible) Senate dysfunction, the 1099 problem. If you haven't been following it: the health care bill added a lot of IRS paperwork to small businesses in order to generate a bit of revenue (from, basically, better enforcement). The general consensus now is that the bill overshot, and the revenues that will be generated aren't worth the hassles created. The question is how to repeal it in a budget-neutral way, and naturally the parties differ. However, in the 60 vote Senate, once the parties are fully polarized (neither having 60 votes by itself) then nothing wins, and a relatively small, easily solvable problem that everyone agrees about doesn't actually get solved.
Is that Senate dysfunction? The Democrats were able to find 56 votes for their preferred solution; presumably, in a Senate in which 51 votes (or 50 with the Veep) were enough, the Democrats' plan passes, problem solved. So it's all a problem with Senate rules, correct? Maybe, maybe not. First of all, the Democrats are to some extent in trouble on this because they made what they now believe was a mistake in the big bill. That's not unusual, but it's also reasonable for the GOP to try to get as much mileage out of it as possible. Second, the Democrats probably did (and do) have other options available; if they, for example, put this into a bill at the committee level, then the specific provision wouldn't need 60 votes, although of course the final bill would. Would it derail a bill that would otherwise pick up 65 or so votes? I don't know. Third, as usual this is to some extent about the current situation in which Democrats are close to but not quite at 60 votes in the Senate. If there were 55 Democrats, it's possible that they would have sought and reached a compromise that several Republicans could accept, instead of trying to get through a measure that eventually lost three Dems and picked up zero Republicans. It's also possible that, for whatever reasons, the Democrats would rather have the issue (by generating GOP votes against a 1099 fix); I don't know if that's a good choice, but if I were advising Senate Republicans I certainly would think they're better off with the issue than they would be finding a compromise -- it's nice for them to have at least one complaint about the health care bill that isn't pure fiction, but in fact is supported by various experts.
So in the first case, the Fed nominations, I think the problem isn't Senate rules; it's how Democrats are using those rules. In the second case, I'm really not sure; it's not clear to me whether this is an instance where the peculiar rules of the Senate are impeding action or not, and if so whether it's justified or not.
I do think that some Senate reform would be a good thing, but I also think that blaming everything on the filibuster misses the various and sometimes perverse incentives for inaction that have little or nothing to do with supermajority requirements.