Senate reform? Still possible.

by Gregory Koger on February 2, 2011 · 1 comment

in Legislative Politics,Senate procedure

Last Thursday, the Senate adopted a modest package of reforms. Since I have posted on this topic previously, I thought I would summarize events and add a few thoughts to Steve Smith’s comments. The reforms included:

  • A reform to eliminate anonymous holds, i.e. a senator covertly objecting to bringing a bill or nomination to the floor of the Senate by unanimous consent (Approved 92-4).
  • Elimination of the practice of reading amendments aloud if they are already publicly available (Approved 81-15)
  • An agreement to enact legislation reducing the number of Presidential nominations that require Senate consent by about one-third
  • A “gentleman’s agreement” between Majority Leader Reid and Minority Leader McConnell to refrain from filibusters against motions to proceed (a standard agenda-setting motion) in exchange for fewer efforts by Reid to prevent the Republicans from offering amendments (aka “filling the amendment tree”).
  • Reid and McConnell also agreed NOT to attempt a “constitutional option,” i.e. a simple majority renouncing the permanent rules of the Senate and assuming the right to make rules changes by simple majority vote.

Senators also rejected three proposals:

  • A Harkin proposal to lower the cloture threshold by three votes every time cloture fails (defeated 12-84)
  • An omnibus proposal by Udall (D-NM) to formally eliminate filibusters on motions to proceed, make all holds public, guarantee the right to offer amendments, limit postcloture debate on nominations, and (most interesting) provide for continuous debate in the event that a cloture vote fails (44-51)
  • A Merkley (D-OR) proposal to provide for continuous debate if a cloture vote fails (46-49)
    The latter two proposals had a high level of Democratic support, but the vote was not as close as it looked—Reid and McConnell had agreed that the Harkin, Udall, and Merkley proposals had to garner a two-thirds majority, while the hold reform and amendment-reading change required a three-fifths majority. (See an earlier review of reform options, including hold reform, Harkin’s plan, and attrition)

These incremental reforms (and the failure of bolder proposals) evoked some despair, e.g. by Ezra Klein and Greg Sargent and Ezra Klein again (the latter column makes a good point about this being a good political window for senators to revise its rules). They argue that abandoning the right to attempt the “constitutional option” at the beginning of the current and next Congress means giving up on imposing simple majority rule in the Senate (an unlikely outcome), but also on any bargaining leverage that could be gaining by threatening the “constitutional option.” This view is grounded in a misconception promoted by Senator Udall and shared by many progressive advocates for Senate reform.

While the terms “constitutional option” or “nuclear option” are used to apply to a few different strategies, the version advanced by Tom Udall and other Senate reformers is a throwback to the mid-20th century: renounce the traditional view that the Senate is a “standing body” with permanent rules. Like the House, they argue, the Senate should adopt new rules by majority vote at the beginning of each Congress. While Udall et al were seeking to bring up a fairly modest package of reforms in 2011, if they succeeded with their strategy this year the Senate would revisit its rules—including possibly proposals for simple majority cloture—every two years.

In my view, this strategy suffered from three disadvantages:

  • It can only be pursued at the beginning of a new Congress, rather than during a session when senators are experiencing slowdowns and frustration.
  • It would be relatively difficult to implement. If the Senate is not a standing body and has not yet adopted new rules, then it is governed by “general parliamentary law.” No one really knows what that means, but if it means that the reformers can get an unobstructed vote on their favorite proposal, it could also mean that other senators get unobstructed votes on dozens or hundreds of their own ideas. This could drag out the debate forever, or lead to the adoption of “killer amendments” that lead to the rejection of the whole package of new rules.
  • It is an extraordinary tactic on behalf of ordinary ends. Some senators who liked Udall’s proposals may have been reluctant to adopt this approach to achieve them.

AND, I think this strategy is based on three fallacies:

  • The only way to make major changes in the Senate is by changing the rules of the Senate. In fact, it is possible to make major or minor reforms by adopting precedents by simple majority vote that define the meaning of the existing rules or clarify ambiguities in the existing rules. See this post for more detail and some examples.
  • If reform proposals are debated under current Senate rules, they can be filibustered, and the only way to cut off this filibuster is by invoking cloture by a two-thirds vote. (Senate Rule 22 imposes a higher threshold for rules changes.) The U.S. House confronted this question in 1882 and 1883 when the minority party filibustered proposals from the Rules Committee and the majority party imposed precedents to suppress this obstruction. Nothing prevents a majority of the Senate from doing the same.
  • The best way to avoid this challenge is to renounce the permanent rules of the Senate. A simpler and more direct approach is to directly impose reforms by precedent, or to use the threat of majoritarian reforms to bring the minority party to the bargaining table.

The bottom line is that the Democrats traded away a strategy that would have been difficult to execute (and dangerous if they were in the minority in the 113th Congress) for some fixes to egregious abuses. However, as I understand the Reid-McConnell agreement, there is still ample room to work within the existing rules to improve Senate decision-making, if a simple majority so chooses.

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