Reforming the Senate 1: Reviewing the Options

by Gregory Koger on March 12, 2010 · 17 comments

in Senate procedure

John Sides asked me to comment on Harry Reid’s recent announcement that, at the beginning of the 112th Congress in January 2011, he will attempt to revise the Senate’s rules and practices to reduce the impact of obstruction. I assume that Monkey Cage readers are well aware of the Democrats’ frustration with the pace and politics of the Senate over the last 14 months, contributing to inaction on climate change, student loan reform, banking reform, highway spending, nominations, and forcing excruciating delay and costly bargains to pass health care reform. The question is, what are the Democrats going to do about it? This post reviews and evaluates existing proposals for reforming the Senate’s floor procedures. In later posts I plan to discuss the process by which reform proposals can be debated and adopted and appraise the likelihood of reform actually happening.

Before we go over the options, readers may want to read the text of the Senate cloture rule, Rule 22 (Section 2).

Also, note that reform proposals can have similar but distinct goals. Reformers might be trying to: – Institute majority rule in the Senate. That is, a system in which a simple majority can (usually) set the agenda and pass legislation without delay or bargaining. – Make it easier to end a filibuster on a given bill, e.g. by reducing the number of opportunities to filibuster a given bill or changing Rule 22 to a) lower the threshold for cloture b) shorten the delay between filing cloture and a cloture vote, c) reduce the amount of debate/amending after cloture is invoked. – generally reduce (but not eradicate) the number of filibusters and holds. Such reforms would make the Senate more efficient and/or reduce the influence of individual senators (e.g. Richard Shelby or Jim Bunning) by making it more difficult or costly to filibuster. – generally make the Senate more efficient or productive without directly limiting obstruction.
Now let’s review the proposals.
1) Tom Harkin: lower threshold for cloture
Harkin’s proposal would lower the threshold for cloture on a particular motion/amendment/bill from 60/100 on the first attempt to 57, 54, and 51 on each successive attempt, with a full two-day wait in between each attempt. This proposal came up for a vote in 1995 (when it was cosponsored by, ahem, Joe Lieberman) and was rejected 19-76 (R 0-53, D 19-23).

Evaluation. Some maxims to live by:
a) i before e except after c
b) never get involved in a land war in Asia
c) ask yourself: ‘what happens if I win’?
If Harkin wins, the new rule would likely lead to MORE obstruction. While it would seem to enable a bare majority to pass a Very Important Bill (e.g. health care) after four to twelve cloture votes, it does not guarantee that the VIB would ever make it to the Senate floor. If the rule was adopted, the likely response of the minority party (or other organized factions) would be to obstruct EVERYTHING, thereby forcing (multiple) cloture votes on routine motions and trivial bills. By doing so, a minority could so delay the Senate that the majority party is forced to barter in order to make any legislative progress—just like the status quo, but with more cloture votes.

2) Michael Bennet (D-CO) has proposed a broad set of reforms to improve the Senate (see his interview with Ezra Klein here)
The relevant proposals are: – Eliminate anonymous holds – Require holds to be bipartisan. If not, the hold expires in 2 days. Even bipartisan holds expire in 30 days. – After 3rd failed cloture vote, the minority must find a member of the opposite party or the threshold raises to 45 votes. – After the 3rd cloture vote, if the majority finds support from three members of the minority, it raises to 45 votes. – End the filibuster for motion to proceed – Require 41 Senators to show up to vote in order to block cloture, or else it’s invoked

If senators could reduce the number and effect of holds, that would help Senate be more efficient and transparent. But, remember, the essence of a hold is a refusal to consent to unanimous consent requests (i.e. agenda-setting proposals that require, you know, unanimous consent). This refusal may be conditional (“not unless my write to offer amendments is protected”; “not until the administration does this thing that I care about”) or unconditional opposition to a proposal. If necessary, party leaders will often object to UCAs on behalf of members. So, in order to reform holds , one would need to change the behavior of party leaders in both parties…OR change the way the Senate sets its agenda.

Re: changing the cloture threshold on the 3rd vote, see above.

Ending the filibuster for the motion to proceed (an agenda-setting that requires a simple majority but is usually vulnerable to a separate filibuster) is a proposal dating back to (at least) 1979, when then-majority leader Robert Byrd proposed it. The logic is that it is absurd to allow multiple filibusters against a given bill; one should be enough. More subtly, if a bill gets to the floor, senators may develop the expectation that it will pass and/or have a chance to amend it into a form that can garner 60+ votes, so if the motion to proceed is immune from obstruction the Senate would be more likely to act on major bills without losing the benefits of requiring a supermajority to bring the bill to a final vote.

Requiring 41+ votes AGAINST cloture to extend debate is an intriguing idea. As far as I know, credit for the idea goes to our distinguished colleagues Jonathan Krasno and Gregory Robinson, who proposed it in this Roll Call column. This idea subtly reverses the bias in the rule, since absences count AGAINST a filibuster rather than FOR it. Krasno and Robinson downplay the implications of this proposal “since attendance is generally high for cloture votes.” However, if the rule was adopted the majority could make a habit of filing for cloture on Thursday or Friday and keeping the Senate open on Saturday and Sunday, so that obstructionists would have to stay in D.C. to vote against cloture. For today’s “Tuesday to Thursday” Senate (on a busy week) this would be a real change, and could quite possibly swing the outcome of some cloture votes. If this reform was combined with Krasno and Robinson’s proposal to shorten the time between filing a cloture petition and voting on cloture (to five minutes, an hour, four hours), it would compel obstructionists to actually endure some inconvenience.

3) Force senators to ACTUALLY filibuster—proposed by multiple sources, including senators Byrd (D-WV) and Richard Durbin (D-IL).

Remember, there is no Senate rule that grants the minority a 41-vote veto. The current right to block legislation and nominations evolved out of senators’rights to speak as long as they like, and to force votes on procedural motions and questions; now senators simply skip this time-wasting process and simply concede each other’s ability to filibuster. If the minority was forced to actually conduct a filibuster on the Senate floor, perhaps they would be deterred from threatening trivial filibusters by the extra physical and political costs.

I have previously written about the transition from live filibusters to virtual filibusters here and here. Suffice it to say that there are real reasons that senators stopped fighting these wars of attrition—basically, they value their time too much to waste it on the Senate floor. BUT, there could be political gain in forcing the minority to wage a public fight against popular bills, e.g. extending unemployment benefits or reforming bank laws. And if there is a single senator (or a small band) doing the obstruction, attrition could actually be effective.

So ends my informal survey. Undoubtedly I have left out several interesting ideas—feel free to mention them in the comments section!

{ 16 comments }

R.G. March 12, 2010 at 7:40 pm

This is the best analysis I have seen so far.

Somehow, the spirit of the rule instituted 5-Sep-1774 and referenced in every Congress each year thereafter to date (specifically, that any single state can defer any vote by Congress for an indefinite period) ought to be preserved, with those who abuse the right being subject to economic penalty. Simple majority rule would, mathematically, provably result in disaster; however, current procedures reinforce the jokes made by Jefferson regarding public perception of the “parliament” (the House). So far, the best suggestion I’ve heard involves enforcing quorum at all times: I’m still listening, though.

Kevin March 12, 2010 at 9:31 pm

It seems like the last part of item 2 makes item 3 a great deal easier. You pointed out in your Fresh Air interview (sorry, haven’t gotten to the book yet) that forcing a filibuster is harder on the group trying to pass the legislation than the group trying to block it, since under the current rules those voting for cloture would have to stay all stay on / near the floor, while the group opposing could be free to cycle their live-filibustering members in and out of the chamber. Am I correct in understanding that the Bennet / Krasno / Robinson suggestion would substantially change the burden in live filibusters, separate from its effect on cloture votes directly?

James Madison March 13, 2010 at 3:53 am

Dude, you’re talking about Harry Reid’s plan to “reform” the Senate in the 112th Congress???? Harry Reid wont be in the 112th Congress! If the Senate Majority Leader isn’t Mitch McConnell, Senator McConnell will lead 47/48 Republicans in the 112th… no ones reforming the Senate anytime soon, ROFL!!!

JohnR22 March 13, 2010 at 10:19 am

God, I love how all of a sudden our 250 years old system is “broken” and we need to change it. The Left puts together a bill the pubic is overwhelmingly opposed to, they can’t even get members of their own Party to support it, and what’s their conclusion? They conclude (lol) that the SYTSEM IS BROKEN. No, the system is working just as designed. It was designed to allow passage of only modest incremental legislation that has broad based public support. And that AINT Obamacare.

low-tech cyclist March 13, 2010 at 3:44 pm

JohnR22 – just to fight ignorance, there’s nothing particularly venerable about the way the filibuster is currently being used. That was pretty much a creation of the 1993-94 Congress.

So unless Gingrich and Dole were among the Founding Fathers, your post is nonsense.

While I disagree with arguments that the filibuster is unconstitutional, it’s clear from the Constitution itself, as well as the Federalist Papers, that the Founders didn’t intend a supermajority to be necessary to pass legislation in either House of Congress, except in a limited handful of situations.

Happy to clear that up.

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james March 13, 2010 at 4:26 pm

“not unless my write to offer amendments is protected”

That one hurt.

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James Madison March 13, 2010 at 6:45 pm

To: low-tech cyclist–

Regarding your thoughts about the twentieth century advent of the “Filibuster” in the Senate.

As many of you know (I hope, they don’t seem to teach about founders like me in schools anymore), I wrote a majority of what eventually became the U.S. Constitution. As the Constitutional Convention was being planed by the states (recognizing the obvious weaknesses of the Articles of Confederation), and knowing I would represent Virginia, I set out to study the history of republics in an effort to be prepared by Spring 1787, and also, knowing my colleagues uniformly aspired to a republican form of government. My conclusion? Republics almost always failed from the center due to the violent force of factions.

My blueprint, known as the Virginia Plan, originally proposed a unicameral legislature (House of Representatives) based on proportional representation (population). Beyond the inadequacy of the Articles of Confederation, there was no single sentiment more broadly held among the delegates at the convention than a strongly held view that a new central government, with significant new powers, represented a grave threat to the historic freedoms won during the revolution of ‘76. I understood this, and shared the view, but also believed a vital new central government was essential to the survival of the nation. My challenge then, was creating a republican constitution with a strong executive, representative legislature, and an independent judiciary… while ensuring the central government would not take up powers not delegated it directly and threaten the liberty of states nor individual citizens. I gave form to these contradictory impulses by encapsulating the new branches of the central government in a “Federalist” power sharing scheme, and by separating and checking the powers of the national apparatus.

There was significant resistance to the proposed central authority under my plan, such that the convention was destined to fail in agreeing to it but for two adaptations to the design. The first was the obligatory necessity of a charter of negation (Bill of Rights), and a legislature that would represent the states in addition to persons (Senate).

The delegates from small states were certain that the powers granted the central government under my plan, with a proportional legislature as structured, would envelope and crush the interests and rights of small states. An opinion, I might add, that proved to be correct in hindsight. The impasse was bridged by delegates from Connecticut. Known as the “Great Compromise,” the delegates agreed to a bicameral legislature that would include an upper chamber with an equal number of Senators from each state, which would give weight and recognition to the opinions of whole states in addition to those of the electors in aggregate.

My constitution provided for several instances where a supermajority in the legislature would be required for discrete actions: Convicting an Impeachment (2/3 majority in the Senate – Article 1, Section 3), Override a Presidential Veto (2/3 majority in both the House and the Senate – Article 1, Section 7), Ratify a treaty (2/3 majority in the Senate – Article 2, Section 2), etc… But it is true the Constitution per se never set out a requirement for a supermajority on legislation under regular order. However, it DID grant each body the power to set up its own rules and procedures, i.e., the Constitution neither “denied” the imposition of a supermajority on legislation under regular order. The Senate has, since 1917, in full compliance with the text of the Constitution, required Cloture to move under regular order.

The point is, regardless of your opinion on the utility of Cloture, it’s use is entirely Constitutional, and a fair reading of history would conclude that it also reflects the spirit of the founders intent regarding the role of the Senate. The Senate was not meant to be a majoritarian body, it was meant to give force to the interests of whole states in a Federalist system. It also was designed to mollify the impulses of a passionate and restless faction, which, may momentarily hold a majority in the House, but might not properly and soberly serve the good of the republic over time (for more on factionalism of this sort, read my Federalist No. 10).

The point is… the Senate was not meant to be a smaller version of the House of Representatives.

Patrick March 13, 2010 at 7:09 pm

I’ve heard good reasons why #3: Forced Attrition wouldn’t be as good as it might seem on paper. The minority, by virtue of being in the minority, would be able to incur a larger cost on the majority.

Assume 59 Democrats and 41 Republicans. Each can raise $10k an hour fundraising. For every hour in filibuster, it costs the Democrats $590k, but Republicans pay only $410k. That means Republicans have a net gain of $180,000 for every hour in forced attrition filibuster.

jeffl March 13, 2010 at 7:28 pm

Reform the Senate? This would be just like the Dems to do away with the filabuster, just in time to possibly lose the majority in the Senate. When the Dems had the supermajority to overcome the filabuster they couldn’t pass anything, so don’t ya kinda think that might mean that it was bad legislation to begin with? I do! If they were decent bills proposed then a lot more would have passed. Lets put the blame where it belongs. I remember the Dems changed the law in MA so that the GOV (Mitt Romney) could not appoint a Senator for John Kerry’s soon to be vacant seat. So they passed a hurried law, for a special election instead of appointment and here we have Scott Brown. Smart, lets do it again as it worked so well the first time. Next will be the recommendation do do away with the Supreme Court as antiquated when they rule ObamaCare unconstitutional on any one of the numerous suits that will be filed as soon as the bill is signed by BO.

low-tech cyclist March 13, 2010 at 8:55 pm

“James Madison”: ROFL!

IntotheVortex March 13, 2010 at 11:22 pm

“John Sides asked me to comment on Harry Reid’s recent announcement that, at the beginning of the 112th Congress in January 2011, he will attempt to revise the Senate’s rules and practices to reduce the impact of obstruction.”

Um, Harry Reid ain’t likely to be anywhere near the US Senate in Jan ’11.

Timothy L. Pennell March 14, 2010 at 10:18 am

I don’t see TERM LIMITS on the list. Without TERM LIMITS, everything else is just window dressing.

Bead Suppliers March 15, 2010 at 8:09 am

Does Anyone Make A Living From Beading? What do you call making a living? I’m not being a wise-guy, but I think that different people have different ideas of what is enough to live on.

Armand Buontempo March 17, 2010 at 5:42 pm

You’ve nailed it here. I am looking forward to more and will return often.

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