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The Sausage Factory

Raging Reid and Filibuster Bluster

Senate Majority Leader Harry Reid made news not too long ago by proclaiming from the Senate Floor that two junior Senators who agitated for filibuster reform at the beginning of this Congress were “prophetic”, and that the body was wrong to ignore them.

Will the Senate reform the fabled filibuster any time soon? Or was Reid just venting, as one Republican aide suggested to Roll Call?

Washington-watchers drool over the prospect of a filibuster reform-there is even a lawsuit, with the plaintiffs claiming that the practice is unconstitutional. Just think: a swifter-moving Senate!

Reid praised the filibuster reformers, and as much as he would love to, he probably wasn’t seriously thinking of changing it. Normally two-thirds of the Senate must agree to a change in the Chamber’s standing rules. But as you will recall from an earlier post, last year, Reid established a new precedent for changing the interpretation of Senate rules with a simple majority vote. (He triggered what is commonly called the nuclear option.) So the Majority Leader could change the filibuster quite easily if he so wished. If Reid could eliminate the filibuster for the motion to proceed, he could bring up any bill he likes, any time he likes.  That’s quite empowering for a Majority Leader and quite frustrating for the minority.

Of course, pay back is a… well, you know.  If the Republicans were to retake the Senate majority and the White House as many political prognosticators predict, they would have complete control of the agenda and would be able to get President Romney’s agenda and nominations through much more easily than recent presidents have been able to do. Even if the Democrats don’t lose the Senate this year, it’s more likely than not that they will in the future.  (In recent history, the Senate has flipped back and forth between the two parties every few Congresses). Some of the more seasoned Democrats in the majority understand this and probably made it clear to Senator Reid that they prefer he not mess with the rules of the Senate, which have been in place since 1792. Weakening the minority’s most powerful tool for obstruction is only a prudent move when your caucus will clearly control the chamber for years and years (and years).

(Ironically, Reid himself has been a strong supporter of the filibuster-well, at least when he was in the minority. In 2005, he said it was “the last check we have against the abuse of power in Washington”.)

So, it is no surprise that Majority Leader Reid has stated that filibuster reform is not going to happen yet. Speaking to The Hill, he said, “We’re not going to do it this Congress”.

Majority Leader Reid, however, is not totally off the mark. Filibuster reform per se is not an unreasonable goal. But it will not be a silver bullet. The way the Senate has been designed means that filibuster reform will not be a panacea.

The House of Representatives is a strongly majoritarian institution – that is, it is designed to allow a cohesive majority to work its will. On the other hand, the Framers of the Constitution desired that the Senate protect the rights of the minority against the “hasty” actions of the House. To that end, they designed the Senate to be a slow-moving, deliberative body. A reported conversation between George Washington and Thomas Jefferson illustrates Senatorial concern for minority rights well.  Jefferson, who had been in France as the young Republic’s ambassador, wanted to know why the Senate was created the way it was. “Why did you pour that tea into your saucer?” asked Washington, who had been president of the Constitutional Convention. “To cool it,” said Jefferson. “Even so,” responded Washington, “we pour legislation into the senatorial saucer to cool it.”

Since the Senate is designed to protect the minority, a main rule and tradition that governs the Chamber is the principle of unanimous consent. According to the Senate website, “A Senator may request unanimous consent on the floor to set aside a specified rule of procedure so as to expedite proceedings. If no Senator objects, the Senate permits the action, but if any one Senator objects, the request is rejected.”  To get unanimous consent for anything requires a degree of comity and bipartisan cooperation that you will not normally see today.

The filibuster is so potent precisely because the Senate requires bipartisanship to operate yet we live in a very partisan era. The Senate can end a filibuster by “invoking cloture”, but this requires 60 votes to pass-a very high bar indeed, since few Senators cross party lines. Unless the dominant party has a majority of at least 60 Senators (as the Democrats did from 2009-2010), it must get bipartisan cooperation to pass anything. Yet, the filibuster can be used so frequently that Senators can prevent legislation even from being considered, much less passed.  Thus the Senate becomes stopped up, and the ideological extremes are empowered.

Of course, this sets up a “chicken-or-the-egg” question.  Is the Senate dysfunctional because of the filibuster, or is it dysfunctional because its Members refuse to work on a bipartisan basis? You can actually blame both.  The root of the problem is partisanship, but harsh parliamentary tactics (like the filibuster) are both a cause and result of the same. We stated the principle behind Congressional paralysis in the book Surviving Inside Congress: “[when] the majority takes away the voice of the minority and makes it impossible for them to constructively participate in the crafting of legislation, the minority has no alternative but to obstruct the process that deprives them of their voice.”

When the root cause of the Senate’s ineffectiveness is partisanship, unfortunately, the excessive use of the filibuster and other obstructive parliamentary tactics just deepens the cycle of polarization. To combat the Republican filibusters, Reid has consistently blocked the ability to introduce amendments through a procedure called “filling the tree” (a practice discussed in an earlier post).  This allows the Majority Leader to use his right of first recognition to introduce numerous meaningless amendments to block the opposition from offering amendments.  Think of it as a filibuster by the majority.  Reid then stalls the process until the desire for cloture ripens and it is adopted.  Of course, this hard-line stance infuriates and unites the opposition, making it harder to get a bipartisan vote to proceed to the legislation at hand, thus deepening the partisan morass. The minority is then more inclined to filibuster in the future, which, in turn, drives the majority to use other parliamentary tactics to shut them out, and the cycle continues. In other words, parliamentary tactics like the filibuster are indeed causes of dysfunction.

Even though the media narrowly focused on the filibuster as a cause of Senatorial dysfunction, in his speech, Reid actually also seized upon the fact that partisanship is the cause. At the beginning of his speech, he lauded the House’s ability to pass a bill on a bipartisan basis. By contrast, he complained that the “far-right Tea Party wing” of the Senate Republican Conference believes “everything has to be a fight”. Of course, being a busy man, Senator Reid might have suffered a momentary lapse in memory when he forgot that “far left-wing” of his party did the exact same thing to the Republicans before they lost the majority in 2006. 

Is this any way to run what has been called “the world’s greatest deliberative body”?

To improve the effectiveness of the Senate, the Senate must restore civility and cultivate bipartisanship, not simply modify parliamentary procedure.

The history of filibuster reform suggests that mere changes to parliamentary procedure will ultimately not speed up the legislative process. Proponents of filibuster reform, for example, like to point out that the filibuster was unintentionally created. When Vice President Aaron Burr oversaw the reform of the Senate rules in 1806, he suggested that they remove the motion for the previous question, which ended debate if agreed to. The motion was supposedly removed because it was infrequently used, since the Senators understood that debate should be limited, and they observed that norm for a time.  Indeed, procedural filibusters were more likely in the House than the Senate during the first 100 years of the Congress until the famous Speaker Thomas “Czar” Reed of Maine created the modern Rules Committee.  The Senate never even had a cloture rule-the modern Senate’s motion to cut off debate-until 1917 when a few Senators filibustered President Woodrow Wilson’s legislation to arm merchant ships against German U-Boats on the eve of the American entrance into World War I.

According to Martin Gold and Dimple Gupta, authors of “The Constitutional Option to Change Senate Rules and Procedures”, over the years, there have been a number of reform efforts and compromises made to limit the use of the filibuster. Ironically, efforts to make it easier to obtain cloture have also made it easier for Senators to filibuster by creating a de facto 60-vote requirement for any controversial legislation.  So based on previous filibuster “reforms”, it is not so obvious that parliamentary changes will suddenly make the Senate a more efficient legislative body. 

Even if it would not solve all the Senate’s problems, some kind of filibuster reform, and procedural mutual disarmament in general, is in order. There may be some creative changes to the filibuster rule. It is not unreasonable to see a change where the ability to filibuster a motion to proceed to a bill is banned in exchange for following Senate rules that allow all Senators to offer amendments to a bill.  Both sides would benefit.  The filibuster would remain in place for a vote on final passage – protecting the minority against roughshod tactics by the majority, as had been the intention of the Founding Fathers.

Forbidding a filibuster on the motion to proceed is just one suggestion, and any number of others might help too. But any reforms should be carefully considered. To be sure, excessive filibusters and attempts to block amendments increase acrimony, but simply making the process more “efficient” will treat only the symptoms, not the disease-and hasty changes might make it worse, in fact.  The Senate was not designed to be, and never will be efficient – but it could be far more effective if the two parties restore the principles of respect and compromise that have been at the foundation of two centuries of legislative accomplishment.  

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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