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.

{ 3 comments }

Joe Lang November 20, 2012 at 10:01 pm

This has made me uncomfortable from the get go, and for precisely the same reasons.

It seems that any rule change can be worked around. The history of the filibuster is replete with such examples, with people standing in and arguing for the originator while he slept and food brought to the speaker.

What is NOT stated in a rules change is every bit as important as what is stated.

Steve Smith November 21, 2012 at 10:53 am

Here are the main proposals to force debate:

Lautenberg–After a cloture motion is filed and before a cloture vote, the majority leader may put a simple majority cloture motion if no senator seeks recognition to speak.
Udall–After cloture fails, if no senator seeks recognition the presiding officer must announce that cloture is considered invoked.
Merkeley–After a cloture motion fails but has majority support, and no senator seeks recognition, the majority leader may make a simple-majority motion to bring debate to a close and specify a time for the vote.

These proposals ban motions and other actions that would give filibusterers a chance to rest.

The possibility of unintended consequences is always possible and is the universal argument of reform opponents. Udall’s proposal is the strongest and its implications seem clear. It creates an affirmative obligation for the presiding officer to bring a matter to a vote under well-specified conditions. To be sure, senators can negotiate some other arrangement on a case-by-case basis so that filibustering senators would not have to seek recognition under all circumstances. I expect that they would. But the burden of retaining the floor would shift dramatically.

Quite uncertain is whether the Udall reform would reduce filibustering, as Udall and others hope. They are looking for a way to reduce obstructionism without directly changing the cloture threshold. They hope that visible and burdensome filibustering will increase the cost of obstruction. It would, but it is not hard for a sizable minority to organize tag-team debate and retain the floor.

The majority, of course, generally does not want talking filibusters. As the minority knows, the majority usually wants to get to other pressing business. Negotiating around the filibustered bill would still be common.

Still, the Udall reform or some form of it would shift the burden of retaining the floor in a predictable way.

Richard Arenberg November 21, 2012 at 12:00 pm

Sarah Binder, Greg Koger and Steven Smith as usual contribute valuable and insightful views about the current filibuster reform debate. I share the view put forward by Greg and Sarah that the “Mr. Smith Talking Filibuster” proposals put forward by Senators Merkeley, Udall, and Senator-Elect Warren are not likely to produce the results they desire. In fact, majority leaders can and have forced filibusterers to speak under existing rules.

Majority Leader Robert Byrd in 1988 forced three days of non-stop session in an effort to end a filibuster on campaign finance reform. In more recent years Majority Leaders Bill Frist in 2003 forced an all night session when the Democrats filibustered President George W. Bush’s Circuit Court nominees and Majority Leader Harry Reid did the same in 2008 when Republicans filibustered the Levin-Reed amendment to set a timetable for withdrawal of troops from Iraq. These leaders did not believe that they were likely to break the back of these filibusters by forcing debate. They knew better. The efforts were largely to increase the glare of public awareness through the media’s fascinating with the spectacle of all-night filibuster debate.

In my experience, the minority seldom fears explaining their reason for resorting to filibusters—more often, they welcome the opportunity. Even when the majority has the more popular position, the minority often seeks to strengthen its base by dramatizing the lengths to which they are willing to go. In most instances in which they are obstructing a very popular proposal, the filibuster collapses over time in any event.
The make-them-speak tactic is effective against “lone-wolf” filibusters.

Former Parliamentarian Bob Dove and I agree with the proposals to limit debate on the motion to proceed and on the three motions necessary to go to conference. In fact, we proposed exactly that in our book Defending the Filibuster: The Soul of the Senate.
But, the crucial question is not so much which of these proposals will work well, but how filibuster reform can come about. As we approach the beginning of the 113th Congress, too much of the public media treat the “constitutional option,” not merely as an argument put forward by proponents of eliminating the filibuster for 200 years, but as a fact.
More troubling is the assertion by the current proponents in the Senate, that they will use the “constitutional option” (if Majority Leader Reid adopts this strategy and if 51Democrats will support it) merely to adopt moderate adjustments to the rules like those discussed above. This is dangerous because, in my view, the creation of this precedent of simple majority cloture is a slippery slope which leads inevitably to a majoritarian Senate.

For more see November 14 Washington Post op-ed.

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