Are the effects of Senate rule changes predictable?

by Sarah Binder on November 20, 2012 · 3 comments

in Senate procedure

Greg Koger offers important insights here about potential reforms of Senate rules that seek to encourage “talking filibusters.”  Although as Greg notes, we lack details about the mechanics of the proposed rule change, the gist of the potential reform is two-fold. First, senators seeking to delay or derail measures and amendments would be forced to go and stay public with their objections on the chamber floor.  Second, in the absence of overt floor activity by the opposition, a simple majority of senators could vote to invoke cloture, thus (in theory) ending the filibuster (or, presumably, to thirty hours of post-cloture debate).  Under current rules, sixty senators typically must vote to invoke cloture to end debate and to bring the chamber to a vote on the underlying proposal.  In short, reformers seek to both encourage full-fledged filibusters and to end them more easily.

I generally share Greg’s degree of skepticism about the potential effectiveness of the talking filibuster reform.  As he explains, one source of uncertainty about the impact of the reform is that we don’t have sufficient details about the precise mechanics of the rule change to fully evaluate its effectiveness.  The devil is always in the details, no less in the Senate than in other institutionalized settings.

I would also add another source of uncertainty more unique to the Senate:  It’s very hard to predict the consequences of changes to Senate rules.  Why? Because most of the time, senators do not fully exploit the chamber’s formal rules.  They don’t have to.  Instead, senators use their leverage under the rules to force Senate leaders to accommodate their demands when leaders negotiate unanimous consent agreements.  By addressing senators’ demands (say by delaying consideration of a bill or guaranteeing that they can offer an amendment), leaders set aside the formal rules and make the chamber (barely, perhaps) functional.  Sometimes, senators’ demands cannot be met.  On those occasions, the Senate typically crawls to a halt—till the majority moves on to other business.  But on a daily basis, leaders often succeed in stemming their colleagues’ incentives to fully exploit their formal rights under the rules.  It may look like the Senate is often tied in knots, but it could be a lot worse (more cloture votes, more delay, etc.).

Why is this relevant for anticipating the effects of changing Senate rules?  It’s tough to turn on a new rule and  calculate the effects that are likely to follow because it’s hard to know how senators will react.  A new rules regime—particularly one curtailing the right of extended debate under Rule 22—could encourage senators to aggressively avail themselves of every procedural avenue in the Senate rule book for obstructing the Senate.  For instance, the minority could become less likely to agree to invoke cloture on the motion to proceed, preventing the majority from calling up bills high on its agenda.  Or senators could become more aggressive in the demands they make on a leader as a condition for signing onto consent agreements.   Both scenarios suggest that filibuster reforms could bring  unintended consequences.
Such uncertainty about the effects of Senate reform complicates life for reformers.  No surprise then that the last major reform of the Senate cloture rule occurred over thirty years ago.  Even senators in the majority—who might have the most to gain from curtailing extended debate—are often reluctant to discover firsthand the uncertain consequences of reforming Senate rules.

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