Senate reform is back in the news, thanks to some incredibly obscure procedural shenanigans on the Senate floor last week and a follow-up Op-Ed by Senate Majority Leader Harry Reid in Washington Post. The narrow issue concerned filibuster rules but the broader issue is how to fix dysfunctional Washington.
The news was not good. For those who believe that the Senate is unable to function properly under current rules and practices, however, neither the very minor change in precedent nor Reid’s Op-Ed -- which blamed Republicans for abuse but didn’t even hint at doing anything further about it -- were very encouraging. Indeed, for anyone who wants to retain the Senate’s old traditions and advantages, the time to reform Senate rules is as soon as possible -- because otherwise the Senate is most likely going to wind up as a second House of Representatives.
The problem is that both parties have been in a decades-long war to exploit the Senate rules, which has produced a dysfunctional chamber that looks little like what it was in, say, 1961 or even 1981. Most of the ratcheting up has been by Republicans, who began filibustering all major legislative initiatives during Bill Clinton’s presidency and increased that to across-the-board filibusters in 2009. During Barack Obama’s first two years, we had for the first time a true 60-vote Senate, in which every bill and every nomination was automatically filibustered.
Democrats have contributed, too: Their defeat of Defense Secretary nominee John Tower in 1989 ushered in a new era in which partisan battles over nominations were the norm, and in the majority they reacted to filibusters by restricting the ability of minority-party senators to offer amendments. The Senate has never been a strictly majoritarian body, but it used to be perfectly ordinary for bills and nominations to pass narrowly -- which used to mean (winning!) votes of 51-49 or 52-28. No more.
This can’t and won’t last. During periods of divided government, such as the current one, it doesn’t matter very much; the seemingly epic struggle over the jobs bill in the Senate over the last week was really just over bragging rights, since everyone knew that the House wasn’t going to support Obama’s bill regardless of whether it passed the Senate or not. But the next time there’s unified government, it’s unlikely that a majority party, just elected, will allow itself to be constantly thwarted -- especially if it has serious policy goals.
Indeed, that it’s lasted this long will probably be seen to have been a fluke; Democrats were less frustrated in 2009-2010 because they had 60 seats for part of the time, and Republicans during 2003-2006 rarely had any legislative plans of their own, so wound up only really caring about judges -- and so that was what they threatened to go “nuclear” about.
If what you want is a parliament-like Senate run by and for the majority party, in which the minority party and individual senators have little ability to legislate, that’s all good. But there’s good reason to search for a middle ground between the present mess and party control.
First of all, a Senate in which individual senators from both parties can fight for particular interests adds something in terms of representation not available elsewhere in the political system. And second, a chamber in which individual senators can make significant contributions to policy, with or without the support of the majority party’s agenda, can be an overall more productive institution, increasing (as I believe the framers intended) the overall potential of the system. We’re used to thinking of checks and balances as a way to prevent things, which is true, but checks and balances also means giving more actors a chance to have meaningful policymaking roles, which makes the whole system far more vital.
So those who really do want a powerful Senate that uses contributions from all its members should be acting now to reform the rules before it’s too late. I’d like to see reforms that include a simple majority confirmation of executive branch nominees while retaining holds so that individual senators can fight for their narrow interests; a guaranteed but still supermajority vote for lifetime judicial nominees; and a new superbill or leadership bill to replace the awkward and arbitrary reconciliation rules. Such a bill would give the majority party a good shot to get (some of) their priorities passed each year -- while giving the minority a real chance to pass amendments. Others have tried to invent complex schemes for some sort of sliding scale of filibusters, trying to guarantee both minority voice and majority action.
But unless real defenders of the Senate step up and act soon, none of that will matter. We’ll most likely wind up with majority party rule, with a meaningless minority party with strong incentives for irresponsible behavior, just as we have had in the House ever since reforms implemented in the 1960s and 1970s strengthened majority party leadership in that chamber. And Congress, and the constitutional system, will be permanently damaged.