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The Sausage Factory

Flattening the Rules: The Implications of the Senate Nuclear Option

Last week the Senate used the nuclear option to eliminate the filibuster for debate on the majority of Judicial and Executive Branch nominations. The Democrats are thrilled at the move now, but in an election or two, they might come to regret what they have done. In the short term, it hasn’t actually reduced partisanship, polarization, or incivility—the roots of legislative dysfunction—and in the long term, the party will largely be defenseless when they are dying to stop some Republican initiative or another.

We’ve talked plenty about this before. For a run-down of the procedure, we quote extensively from one of our old blog posts:

There are three ways the Senate governs itself: 1) the Standing Rules, first passed in 1794 and amended from time to time; 2) Standing Orders, such as unanimous consent agreements made to regulate how debates will be conducted and other orders passed by the Senate; and 3) the precedents of the Senate, which determine how a standing rule will be interpreted without changing its text. From time to time, parliamentary procedure has collided with partisan politics to stop the Senate. Now is such a time, and now as ever, Senators eager to legislate have tried to find a way to change the rules to expedite the process.

The Standing Rules of the Senate permit filibusters. This is a tactic that an opponent of a bill uses to delay it or kill it off entirely. The present problem with the filibuster is that it has become the de facto starting point for debate on the Floor of the Senate. Filibusters, however, may be ended by cloture, which cuts off debate and requires an eventual vote on the question at hand. The Senate’s Rule XXII governs cloture. Since 1975, to invoke cloture, 16 Senators must file a petition. After two days the Senate votes on the cloture motion. If it passes, there are 30 more hours of debate before the vote must be called. During the 30-hour debate, amendments must be germane and each Senator is limited to an hour of debate. To pass, a cloture vote on a normal measure must receive three-fifths of the Senate (60 votes). The high bar to break a filibuster frustrates each party when it is in control, and now the majority tries to find ever-more creative ways to try to force a change in the rules.

Technically, changing the rules of the Senate only requires a simple majority. In reality, however, rules changes themselves are usually filibustered. And unlike the three-fifths margin required for cloture on a legislative item, the Senate is so protective of its traditions that a two-thirds vote (67) is required to invoke cloture on a rules change. To enact rule changes without having to break a filibuster, majorities have considered using precedents to their advantage.

Precedents are a critical aspect of Senate procedure. Precedents can be created by a simple majority vote – as was done on October 6 [2011]. A precedent can be changed when the Presiding Officer (usually an acting president pro tempore) makes a new ruling that is upheld by the Senate, or makes a ruling that is overturned by the Senate. Usually, when the minority disagrees with a particular ruling it could appeal the Presiding Officer’s decision. The majority would usually move to table the motion. A motion to table is non-debatable, voted on immediately, and requires only a simple majority to pass. Thus, if the majority of the Senate upholds the ruling, the ruling becomes a new precedent. The opposite is also true. If the majority opposes a ruling, and defeats the motion to table an appeal, the chair’s ruling is rejected, and that rejection becomes the new precedent. (Confused yet?) Thus, a majority is able to secure its preferred outcome without having to go through the arduous process of changing a rule.

On Thursday, November 21, the Senate voted to overturn a ruling of the chair that Executive and Judicial nominations require 60 votes for a cloture motion to pass.

What are the consequences of this decision?

First off, yes, the President will be able to get his picks through a lot more easily. But it won’t matter which President, whether it’s Obama or some other President, to be determined. As David French wrote on National Review Online, “I look forward to the speedy confirmation of President Cruz’s or President Paul’s nominees, beginning in January 2017.” Or as Carrie Severino of the Judicial Crisis Network commented, “There’s a lot of (Antonin) Scalias and (Clarence) Thomases that we’d like to have on the bench. It will make it that much easier.” In other words, since the rules have no party, each party can benefit when in the majority.

A more poetic illustration of this principle comes from A Man for All Seasons, which tells the story of King Henry VIII’s conflict with St. Thomas More, one of the English-speaking world’s greatest lawyers. More’s daughter and son-in-law Will Roper urge him to use his power as Lord Chancellor to arrest the man whose testimony will eventually doom him. The saint, however, demurs, pointing out that even if his adversary is wicked, he has committed no crime:

St. Thomas More, patron of lawyers and statesmen

St. Thomas More, patron of lawyers and statesmen

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you’d give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

No, there will be nothing to protect the Democrats when the winds blow against them, the rules all being flat. And they will be flat. The real tragedy here is that the Senate will never again be the “greatest deliberative legislative body in the world,” designed to protect the rights of the political minority.  By using the nuclear option, Harry Reid has essentially made the Senate an institution without rules – his nuclear precedent now allowing a simple majority to do whatever they want. Through the parliamentary sleight of hand of overturning the ruling of the Chair, the majority can now make a rule mean anything they want – regardless of what the rules says in print.  As a result, the Senate essentially has no rules, and therefore no protection of the rights of the political minority and no incentive to create consensus on controversial and polarizing issues.

Now that the Senate can easily change the rules, what’s left of the filibuster is endangered. Why bother stopping at appointments to Executive positions and courts inferior to the Supreme Court? Why not eliminate the filibuster for the Supreme Court and for legislation?

It will only be a matter of time before the filibuster is eliminated entirely. Technically, the rule change last only did away with the filibuster for Executive Branch and most Judicial Branch nominees. The filibuster for the Supreme Court and legislation is still in place. However, right after the nuclear option was completed, Senator Tom Harkin of Iowa rose to speak in favor of reforming the legislative filibuster, as he has many times in the past. (To his credit, Senator Harkin has been consistent in opposing the use of the filibuster, even when he was in the minority.) Given the already strong and widening polarization of the parties, it’s almost inevitable that the filibuster will be done away with completely. For the rest of the post, we will speculate on what the long term consequences of that action might be—if only to persuade readers that the Senate should probably roll back on this filibuster reform.

Once the filibuster against legislation is gone, the Senate will be able to do as the majority wishes. However, whatever they pass still must go through the House before it can go to the President. So the Senate is either going to have to negotiate with the conservative House or let their legislation die there. Neither option is pleasing to the Democrats, but if they let most big initiatives just waste away, they could claim that the House is stonewalling them. In turn, the lower chamber could hurl that accusation right back upon them. If the Republicans hold the House for years to come as many expect, and if the Democrats generally keep the Senate, this would set up an intractable impasse. Although the Senate the Senate nuked the filibuster, they can’t do that to the House. Legislative dysfunction would continue until the voters become decide to elect new candidates.

Practically speaking, a continuing stalemate is the most likely conclusion if the status quo remains in place for a while. It’s a poor situation, but the polar opposite, unrestrained activity, might be even worse. The Senate was created as it was precisely so it could slow down the legislative process, to prevent bad legislation from getting by. The traditional legislative process is arduous, but it promotes quality legislation and allows bad legislation to die. It’s kind of like the Schoolhouse Rock! parody from The Simpsons:

Kid:
Well, why can’t we just make a law against flag burning?

Amendment:
Because that law would be unconstitutional. But if we change the Constitution—

Kid:
Then we could make all sorts of crazy laws!

Amendment:
Now you’re catching on.

Substitute “stopped by a filibuster” for “unconstitutional” and “Senate precedents” for “Constitution,” and you can start to appreciate the value of the filibuster. Even a moderate shift away from the Democrats (or the Republicans, for that matter) could wreak havoc upon them.

Granted, a clip from The Simpsons is a silly example, but liberal supporters of the Senate’s recent judgment should listen to one of their own, Senator Carl Levin of Michigan, who sided with the minority. Following the votes, he rose in to criticize his party, noting the many things Democrats have prevented with the filibuster: pro-life legislation, tort reform, gun rights bills. Perhaps more importantly, he noted that they even used the filibuster while they were in the majority—meaning a number of their own party had sided with Republicans. (For a full transcript of his remarks, see the current volume of the Congressional Record, pages S8421-S8423.) If a party needs the filibuster while in the majority, they won’t survive very long without it in the minority.

The next time that the Democrats are in the minority, they will have to rely on the graciousness of the Republican Party to refrain from pressing their advantage. The Democrats would be hoping too much then. That kind of consideration for the opposition has become progressively more rare over the years. In fact, the failure to observe the Senate’s norms has led to the situation today where most Democrats saw it necessary to abolish the filibuster. The filibuster was readily available to the Senate for years upon years, and for much of that time, it was harder to break than it was today, but they were also historically rare. It’s not the filibuster that’s the problem—it’s the individual people on both sides of the aisle that are more interested in partisanship than consensus. And since human nature is one precedent that no Majority Leader can overturn, the future of the Senate is a lot less bright than it once was.

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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