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!

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