Brookings: Topics - The Senate Filibuster

Banning Filibusters: Is Nuclear Winter Coming to the Senate this Summer?

Sarah A. Binder — Thu, 23 May 2013 12:04:00 -0400

It seems the Senate could have a really hot summer. Majority leader Harry Reid (D-NV) has reportedly threatened to “go nuclear” this July—meaning that Senate Democrats would move by majority vote to ban filibusters of executive and judicial branch nominees. According to these reports, if Senate Republicans block three key nominations (Richard Cordray to head the Consumer Financial Protection Bureau, Thomas Perez at Labor, and Gina McCarthy at EPA), Reid will call on the Democrats to invoke the nuclear option as a means of eliminating filibusters over nominees.

Jon Bernstein offered a thoughtful reaction to Reid’s gambit, noting that Reid’s challenge is to “find a way to ratchet up the threat of reform in order to push Republicans as far away from that line as possible.” Jon’s emphasis on Reid’s threat is important (and is worth reading in full). Still, I think it’s helpful to dig a little deeper on the role of both majority and minority party threats that arise over the nuclear option.

Before getting to Reid’s threat, two brief detours. First, a parliamentary detour to make plain two reasons why Reid’s procedural gambit is deemed “nuclear.” First, Democrats envision using a set of parliamentary moves that would allow the Senate to cut off debate on nominations by majority vote (rather than by sixty votes). Republicans (at least when they are in the minority) call this “changing the rules by breaking the rules,” because Senate rules formally require a 2/3rds vote to break a filibuster of a measure to change Senate rules. The nuclear option would avoid the formal process of securing a 2/3rds vote to cut off debate; instead, the Senate would set a new precedent by simple majority vote to exempt nominations from the reach of Rule 22. If Democrats circumvent formal rules, Republicans would deem the move nuclear. Second, Reid’s potential gambit would be considered nuclear because of the anticipated GOP reaction: As Sen. Schumer argued in 2005 when the GOP tried to go nuclear over judges, minority party senators would “blow up every bridge in sight.” The nuclear option is so-called on account of the minority’s anticipated parliamentary reaction (which would ramp up obstruction on everything else).

A second detour notes simply that the exact procedural steps that would have to be taken to set a new precedent to exempt nominations from Rule 22 have not yet been precisely spelled out. Over the years, several scenarios have been floated that give us a general outline of how the Senate could reform its cloture rule by majority vote. But a CRS report written in the heat of the failed GOP effort to go nuclear in 2005 points to the complications and uncertainties entailed in using a reform-by-ruling strategy to empower simple majorities to cut off debate on nominations. My sense is that using a nuclear option to restrict the reach of Rule 22 might not be as straight forward as many assume.

That gets us to the place of threats in reform-by-ruling strategies. The coverage of Reid’s intentions last week emphasized the importance of Reid’s threat to Republicans: Dare to cross the line by filibustering three particular executive branch nominees, and Democrats will go nuclear. But for Reid’s threat to be effective in convincing GOP senators to back down on these nominees, Republicans have to deem Reid’s threat credible. Republicans know that Reid refused by go nuclear last winter (and previously in January 2009), not least because a set of longer-serving Democrats opposed the strategy earlier this year. It would be reasonable for the GOP today to question whether Reid has 51 Democrats willing to ban judicial and executive branch nomination filibusters. If Republicans doubt Reid’s ability to detonate a nuclear device, then the threat won’t be much help in getting the GOP to back down. Of course, if Republicans don’t block all three nominees, observers will likely interpret the GOP’s behavior as a rational response to Reid’s threat. Eric Schickler and Greg Wawro in Filibuster suggest that the absence of reform on such occasions demonstrates that the nuclear option can “tame the minority.” Reid’s threat would have done the trick.

As a potentially nuclear Senate summer approaches, I would keep handy an alternative interpretation. Reid isn’t the only actor with a threat: given Republicans’ aggressive use of Rule 22, Republicans can credibly threaten to retaliate procedurally if the Democrats go nuclear. And that might be a far more credible threat than Reid’s. We know from the report on Reid’s nuclear thinking that “senior Democratic Senators have privately expressed worry to the Majority Leader that revisiting the rules could imperil the immigration push, and have asked him to delay it until after immigration reform is done (or is killed).” That tidbit suggests that Democrats consider the GOP threat to retaliate as a near certainty. In other words, if Republicans decide not to block all three nominees and Democrats don’t go nuclear, we might reasonably conclude that the minority’s threat to retaliate was pivotal to the outcome. As Steve Smith, Tony Madonna and I argued some time ago, the nuclear option might be technically feasible but not necessarily politically feasible.

To be sure, it’s hard to arbitrate between these two competing mechanisms that might underlie Senate politics this summer. In either scenario—the majority tames the minority or the minority scares the bejeezus out of the majority—the same outcome ensues: Nothing. Still, I think it’s important to keep these alternative interpretations at hand as Democrats call up these and other nominations this spring. The Senate is a tough nut to crack, not least when challenges to supermajority rule are in play.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Joshua Roberts / Reuters

Droning on: Thoughts on the Rand Paul “Talking Filibuster”

Sarah A. Binder — Thu, 07 Mar 2013 00:00:00 -0500

Sen. Rand Paul has just completed his nearly thirteen hour filibuster against John Brennan's nomination to head the CIA. Breaking off his filibuster (because, he inferred, he had to pee), Rand was heralded for bringing back the "talking filibuster." There was much written (and tweeted) about his filibuster, which began with Paul’s dramatic:

"I will speak until I can no longer speak…I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court."

I thought I would add a few late-night thoughts in honor of this day spent with C-Span 2 humming in my ear.

First, I think Jon Bernstein’s reaction to the filibuster was right on the mark. There’s been a lot of enthusiasm for the talking filibuster today, from Ezra Klein's "If more filibusters went like this, there’d be no reason to demand reform," to Josh Marshall’s, "This is a good example of why we should have the talking filibuster and just the talking filibuster." But Bernstein raises a critical point: "Today’s live filibuster shows again just how easy it is to hold the Senate floor for an extended period." The motivation of recent reformers has been to reduce filibustering by raising the costs of obstruction for the minority. In theory, making the filibuster more burdensome to the minority—while putting their views under the spotlight—should make filibusters more costly and more rare. (Paul did note in coming off the Senate floor tonight that his feet hurt…) But as Bernstein points out, Paul believes in his cause, and it plays well with his constituencies. On the physical front, the tag-team of GOP senators rallying to Paul's cause also lessened the burden on Paul (as would have a pair of filibuster-proof shoes). That said, today's filibuster was a little unusual. The majority seemed unfazed by giving up the day to Paul’s filibuster, perhaps because the rest of Washington was shutdown for a pseudo-snow storm. Moreover, the Brennan nomination had bipartisan support, with Reid believing there were 60 senators ready to invoke cloture. In short, today's episode might not be a great test case for observing the potential consequences of reform.

Second, keep in mind that this was a double-filibuster day. The nomination of Caitlin Halligan for the DC Court of Appeals was blocked, failing for the second time to secure cloture. With 41 Republican senators voting to block an up or down confirmation vote on Halligan, an often-noted alternative reform (which would require 41 senators to block cloture instead of 60 senators to invoke it) would have made no difference to the outcome. And what if the minority had been required to launch a talking filibuster to block Halligan’s nomination? Reid might have been willing to forfeit the floor time to Paul today. But Reid would unlikely have wanted to give up another day to Halligan’s opponents. As Steve Smith has argued, the burden of talking filibusters also falls on the majority, which typically wants to move on to other business. "Negotiating around the filibuster," Smith has argued, "would still be common." On a day with two successful minority filibusters (at least in consuming floor time and deterring the majority from its agenda), we can see why the majority might be reticent to make senators talk.

Third, let's not lose sight of the target of Rand's filibuster: The head of the CIA. Although the chief spook is not technically in the president’s cabinet, the position certainly falls within the ranks of nominations that have typically been protected from filibusters. Granted, that norm was trampled with the Hagel filibuster for Secretary of Defense. But rather than seeing the potential upside of today's talking filibuster, I can't help but see the downside: In an age of intense policy and political differences between the parties, no corner of Senate business is immune to filibusters.

All that said, what's not to like about a mini demonstration of a real live filibuster?! Perhaps Paul's late day Snickers break was cheating. But it was a good C-Span type of day overall, for filibuster newbies to Franklin Burdette devotees. Even Dick Durbin well after midnight seemed to be enjoying the fray. Perhaps there’s a silver lining for talking filibusters after all.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Jonathan Ernst / Reuters

Thoughts on the Hagel Filibuster and its Political Implications

Sarah A. Binder — Thu, 14 Feb 2013 00:00:00 -0500

I’m late to the conversation about whether or not Republican efforts to insist on sixty votes for cloture on Chuck Hagel’s nomination as Secretary of Defense constitutes a filibuster. Bernstein’s earlier piece ("This is what a filibuster looks like") and Fallows’ recent contribution provide good, nuanced accounts of why Republican tactics amount to a filibuster, even if some GOP senators insist otherwise. In short, the duck test applies: If it looks like a duck, swims like a duck and quacks like a duck, then …. it’s a filibuster!

Still, I think there’s more to be said about the politics and implications of the Hagel nomination. A few brief thoughts:

First, let’s put to rest the debate about whether insisting on sixty votes to cut off debate on a nomination is a filibuster or, at a minimum, a threatened filibuster. It is. Even if both parties have moved over the past decade(s) to more regularly insist on sixty votes to secure passage of major (and often minor) legislative measures and confirmation of Courts of Appeals nominees, we shouldn’t be fooled by the institutionalization—and the apparent normalization—of the 60-vote Senate. Refusing to consent to a majority’s effort to take a vote means (by definition) that a minority of the Senate has flexed its parliamentary muscles to block Senate action. I think it’s fair to characterize such behavior as evidence of at least a threatened filibuster—even if senators insist that they are holding up a nomination only until their informational demands are met.

Second, there’s been a bit of confusion in the reporting about whether filibusters of Cabinet appointees are unprecedented. There appears to have been no successful filibusters of Cabinet appointees, even if there have been at least two unsuccessful filibusters against such nominees. (On two occasions, Cabinet appointees faced cloture votes when minority party senators placed holds on their nominations—William Verity in 1987 and Kempthorne in 2006. An EPA appointee has also faced cloture, but EPA is not technically cabinet-level, even if it is now Cabinet-status). Of course, there have been other Cabinet nominees who have withdrawn; presumably they withdrew, though, because they lacked even majority support for confirmation. Hagel’s situation will be unprecedented only if the filibuster succeeds in keeping him from securing a confirmation vote.

Third, using cloture votes as an indicator of a filibuster underestimates the Senate’s seeping super-majoritarianism. (Seeping super-majoritarianism?! Egads.) At least two other recent Cabinet nominations have been subjected to 60-vote requirements: Kathleen Sebelius in 2009 (HHS) and John Bryson (Commerce) in 2011. Both nominees faced threatened filibusters by Republican senators, preventing majority leader Reid from securing the chamber’s consent to schedule a confirmation vote—until Reid agreed to require sixty votes for confirmation. The Bryson unanimous consent agreement (UCA) appears on the right, an agreement that circumvented the need for cloture. Embedding a 60-vote requirement in a UCA counts as evidence of an attempted filibuster, albeit an unsuccessful one. After all, other Obama nominees (such as Tim Geithner) were confirmed after Reid negotiated UCAs that required only 51 votes for confirmation, an agreement secured because no Republicans were threatening to filibuster.

Finally, what are the implications for the Hagel nomination? If Republicans were insisting on sixty votes on Senator Cornyn’s grounds that “There is a 60-vote threshold for every nomination,” then I bet Reid would have been able to negotiate a UCA similar to Sebelius’s and Bryson’s. But Hagel’s opponents see the time delay imposed by cloture as instrumental to their efforts to sow colleagues’ doubts about whether Hagel can be confirmed (or at a minimum to turn this afternoon’s cloture vote into a party stand to make their point about Benghazi). Of course, it’s possible that the time delay will work to Democrats’ benefit if they can make headlines that GOP obstruction puts national security at risk. (Maybe Leon Panetta should have jetted to his walnut farm to make the point before the cloture vote.) Whatever the outcome, the Hagel case reminds us that little of the Senate’s business is protected from the intense ideological and partisan polarization that permeates the chamber and is amplified by the chamber’s lax rules of debate and senators’ lack of restraint. Filibustering of controversial Cabinet nominees seems to be on the road to normalization—even if Hagel is ultimately confirmed.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Kevin Lamarque / Reuters

Take a Little, Give a Little: The Senate's Effort at Filibuster Reform

Sarah A. Binder — Thu, 24 Jan 2013 00:00:00 -0500

Today could have been the day when Senate Democrats went nuclear – reining in minority party abuse of the filibuster with a simple majority vote. That would have been my Super Bowl. Instead, the Senate is poised to adopt a bipartisan set of modest (many say, meager) changes to the Senate’s cloture rule. More like the Famous Idaho Potato Bowl, I say.

As many have noted (for starters, Ezra Klein here and Jonathan Bernstein here), the proposed changes to the Senate’s Rule 22 fall far short of what reformers had hoped for. Much blame has been heaped on Harry Reid, the Democratic leader, and on a few senior Democrats, highlighting their resistance to abandoning the Senate’s sixty-vote threshold for bringing the chamber to a vote. The reforms are modest, largely finding ways of speeding up the Senate once both parties have agreed on the matter at hand (for instance on the way to advancing a measure to the floor or after cutting off debate on a nomination). Even if the changes may seem to many like small potatoes, I think there’s more to be gleaned from the Senate’s brush with reform.

First, take a little, give a little. Today’s rule changes remind us that there is no free lunch when it comes to Senate reform. That hurdle is built into Rule 22, given its requirement that 67 senators consent to a vote on efforts to reform Rule 22. In the absence of majority willing to bear the costs of asserting the majority’s right to change its rules, Senate reform is necessarily bipartisan and incremental. Reforms must secure the consent of the minority, or be packaged with changes judged equally important to the opposition. (Recall that even when reformers reduced cloture to 60 votes in 1975, they paid a price: 67 votes would still be required to end debate on changing Rule 22.) Today’s reforms allow a majority to circumvent filibusters of motions to proceed to legislative measures. In return, the majority pays a price each time: The minority is guaranteed votes on two amendments, whereas previously recent leaders might have precluded all amendments by immediately “filling the tree.” To be sure, this potentially dilutes the value of the rule change for the majority. But concessions are dictated by the Senate’s inherited rules. (And, of course, nothing is that simple when it comes to Senate rules; the majority may yet fill the tree, at least after the disposition of the minority’s amendments.)

Second, I suspect we might be underestimating the importance of a non-debatable motion to proceed for the majority party in a period of partisan polarization. Judging from the increase in filibusters on the motions to proceed in recent years, minority parties have fought hard to keep bills off the floor that they oppose on policy or political grounds. So long as the motion to proceed could be filibustered, majority and minority parties shared agenda-setting powers. Today’s change grants the majority a slightly stronger hand in choosing the chamber agenda. To be sure, the minority can still filibuster the bill and amendments beyond those newly guaranteed, but the reform undermines the minority’s ability to throw the majority off course. Take immigration policy, for example. Filibusters of the motion to proceed have kept the DREAM Act off the Senate floor in recent years. Minority influence over the Senate’s agenda is diminished with today’s reform.

Third, these are leader-driven reforms, shaped by the unique burdens carried by the majority and (sometimes) minority leaders. For example, the reforms speed up post-cloture debate on some judicial and executive branch nominations, and allow the chamber to hurry onto cloture votes on motions to proceed to legislative business when the minority offers a modicum of support. No surprise that these housekeeping changes elicit little enthusiasm. These changes don’t make it any easier for a majority to break sizable minority opposition. And they potentially make it harder for rank and file senators to exploit the rules in pursuit of their own policy goals. But from leaders’ perspectives, the reforms rein in the excesses of rank and file dissent when a bipartisan group is ready to move ahead. As one Senate Democrat aide confided, “that’s all Reid ever really wanted.”

Finally, this episode highlights the limitation of the Constitutional option and other “reform-by-ruling” strategies. There appears to have been a majority or near-majority support for securing only very limited reform of Rule 22. Senators seem unwilling to use the tactic for a major overhaul of the Senate’s cloture rule—in part because of the fear of minority retaliation, in part because the filibuster rule likely serves as the foundation of senators’ power. To be sure, Harry Reid aggressively used reform-by-ruling in the fall of 2011 to secure smaller changes to Rule 22 (as did Robert Byrd in the 1980s). But we have to reach back nearly forty years to the 1975 reforms to find a Senate majority willing to go nuclear to impose major changes to Rule 22. (Even then, reformers proceeded without the support of the majority leader, Mike Mansfield.) Perhaps senators see the consequences of weakening Rule 22 in a different light when the parties polarize over policy problems and solutions, with senators nervous about curtailing extended debate when the tables turn on their majority. Regardless, so long as majorities will only form to impose minor reform by majority vote, those majorities will be forced to live under supermajority rules that daily frustrate their policy and political agendas.

And in the Senate’s world, those frustrating days can last for weeks!

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Kevin Lamarque / Reuters

Reforming the Senate at a Snail’s Pace

Sarah A. Binder — Sun, 30 Dec 2012 00:00:00 -0500

As the clock runs out on the dysfunctional 112th Congress, few have been impressed by its paltry record and balky performance. But pardon my glee: December has been a great month for students of Congress. First, the House leadership was handed a blistering defeat on its “Plan B” to resolve the fiscal cliff. Next, while their leaders were meeting to negotiate an 11th hour of the 12th month fiscal cliff deal, eight senators unveiled a bipartisan proposal to head off a Democratic threat to change the rules by majority vote. When it rains, it pours!

The reform package—addressing “talking filibusters” and filibusters on procedural motions – deserves a bit more attention. And it deserves an appropriate historical illustration: To the right, a 1928 Chicago Tribune cartoon that features not the talking filibuster…but a sleeping one. Seems that talking filibusters might have been few and far between even back then.

Ezra Klein and Jon Bernstein have detailed the proposed changes and weighed in here and here, as has Steve Smith by tweet here and here. Since then, a coalition of nearly fifty liberal groups has rejected the proposal out of hand as watered down reform. To these several perspectives on the McCain-Levin plan, I would add the following thoughts:

First, these are at best incremental reforms. The majority leader would essentially gain the right to set the Senate’s agenda by majority vote, as a four-hour debate limit would be imposed on the motion to proceed. But the majority leader would pay a price for that new power: He would lose his power to block amendments (by “filling the tree”) and the minority bill manager and leader would be newly guaranteed an amendment each upon consideration of a legislative measure. (The majority leader, it seems, might still be able to fill the tree after the guaranteed amendments are dispensed with.) This change leaves untouched the sixty-vote threshold for invoking cloture on the measure or other amendments, similar to the plans of Democratic reformers. In short, the change tries to address the grievances of both the majority (by circumventing filibusters of the motion to proceed) and the minority (by creating and guaranteeing amendment opportunities).

Second, the incremental nature of the reforms is not accidental. Ezra has a point when he argues that this is “filibuster reform for people who don’t want to reform the filibuster.” Still, the incremental nature of the proposal strikes me as the price of negotiating procedural change in a legislative body whose rules already advantage the minority party: The majority gets a little only by giving a little. The barrier to reform is entrenched in the Senate’s cloture rule, given the supermajority required for ending filibusters of proposals that curtail minority rights. A Senate majority could circumvent that barrier by going nuclear with 51 votes, but that strategy is not cost-free. To be sure, reformers claim to have 51 votes for a reform-by-ruling move. But it’s not clear to me yet that the majority would be willing to pay the accompanying costs of weathering the minority’s response to going nuclear.

Third, the rules address leaders’ interests more so than those of the rank and file. Some of the proposed changes are aimed at time management. For example, with the consent of the majority and minority leaders and a bipartisan handful of senators , the cloture process is sped up markedly. Similarly, the three debatable steps required to get to conference are condensed to a single motion (albeit one still subject to sixty votes if the minority objects). Other proposed changes alleviate the minority leader from objecting on his colleagues’ behalf, undermining individual senators’ ability to threaten to filibuster without actually showing up. Then again, there’s no enforcement mechanism in the proposal: Senators would be counting on the minority leader to play by the new rules and to abandon his practice of lodging objections on behalf of his absent colleagues. It’s fair to be skeptical that such informal reforms would ever stick.

Fourth, I think there’s promise in the proposal’s directive to the presiding officer to put questions to a (majority) vote when opponents no longer seek to debate a bill. I share skeptics’ views that majorities might rarely want to hold the minority’s feet to the fire to wear down the opposition and that minorities might at times relish the spotlight while holding the floor. But the proposal strikes me as a potentially valuable chance to see if the change would make a difference. If approved, the McCain-Levin proposal would be adopted as a standing order of the Senate for just the upcoming Congress, providing a testing ground for this version of the talking filibuster. (Standing orders are typically approved opening day by unanimous consent; would there be such consent for McCain-Levin or another negotiated proposal?)

Finally, it may be that incremental procedural change is all that a polarized Senate can agree on—especially if some Democrats are skittish about changing the rules by majority vote. Granted, majority senators won’t agree to the plan if it’s perceived as empowering the minority, not the majority, as Senator Harkin has suggested. Nor should they. In that case, an incremental package may be more than a polarized Senate can agree on—leaving the nuclear option as the only avenue for Democrats seeking to rein in the excesses of the Senate minority’s parliamentary rights.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Jason Reed / Reuters

Three Reforms to Unstick the Senate

Sarah A. Binder — Thu, 29 Nov 2012 00:00:00 -0500

"We are now locked in a rolling filibuster on every issue, which is totally gridlocking the U.S. Senate. That is wrong. It is wrong for America."

Who said that? Democrat Harry Reid, majority leader of the Senate? Guess again. Try former Republican leader Trent Lott, bemoaning the troubled state of the Senate in the late 1990s.

No recent majority leader of either party has been saved the headache of trying to lead a Senate in which minorities can exploit the rules and stymie the chamber. This is not a new problem. Harry Reid may face a particularly unrestrained minority. But generations of Senate leaders from Henry Clay to Bill Frist have felt compelled to seek changes in Senate rules to make the chamber a more governable place.

Some things never change.

Twice this week, the Senate has opened debate with its party leaders engaged in a caustic battle over Reid's plans to seek changes to Senate rules in January.

Read the full piece at CNN.com »

Authors

Sarah A. Binder

Publication: CNN

Image Source: © Joshua Roberts / Reuters

“Accelerated Regular Order” — Could it Lead the Parties to a Grand Bargain?

Sarah A. Binder — Fri, 19 Oct 2012 00:00:00 -0400

Suzy Khimm reports on a proposal from the Bipartisan Policy Center that would establish a framework for reaching a grand bargain on deficit reduction in 2013. In short, the BPC proposes that Congress and the president in the lame duck session would agree to a procedural framework for guiding enactment of major spending and tax reforms in 2013. In enacting the framework, Congress and the president would also avert going over the fiscal cliff. In exchange, Congress and the president would make a small down payment on deficit reduction in the lame duck, and would authorize a legislative “backstop” of entitlement cuts and elimination of tax expenditures that would become law if Congress and the president failed in 2013 to enact tax and spending reforms.

The procedural elements of the BPC’s proposal bear some attention. The BPC’s not-quite-yet-a-catchphrase is “accelerated regular order.” Although it sounds like a nasty procedural disease, it’s akin to the fast-track procedures established in the Congressional Budget Act and in several other statutes. In short, the framework proposed by the BPC would instruct the relevant standing committees in 2013 to suggest to the chamber budget committees entitlement and tax reforms that would sum to $4 trillion dollars in spending cuts and new revenues (assuming extension of the Bush tax cuts). The House and Senate budget panels would each report a grand bargain bill for their chamber’s consideration that would be considered (without amendment) by simple majority vote after twenty hours of debate. Failure to meet the framework’s legislated deadlines would empower the executive branch to impose entitlement savings and to eliminate tax expenditures to meet the framework’s target.

Loyal Monkey Cage readers will recognize that the BPC proposal resembles in many ways the procedural solution adopted in the Deficit Control Act in August of 2011. But there are at least two procedural differences from the 2011 deficit deal. First, rather than a super committee, the BPC envisions “regular order,” meaning that the standing committees—not a special panel hand-selected by party-leaders—would devise the legislative package. Like the August deficit deal, the BPC proposal then offers procedural protection for the package by banning the Senate filibuster and preventing changes on the chamber floors (hence, an accelerated regular order). Second, rather than a meat-axe of sequestration that imposes only spending cuts, the BPC offers a “backstop,” giving what I take to be statutory authority to the executive branch to determine which tax expenditures to eliminate and which entitlement programs to cut back.

These differences from 2011 are subtle, but the BPC believes that they would improve the odds of success compared to the failed Super-committee plus sequestration plan. As a BPC staffer noted:

"One of the reasons the Joint Select Committee on Deficit Reduction failed, in our view, was because only 12 lawmakers were setting policy for the entire Congress,” said Steve Bell, Senior Director of BPC’s Economic Policy Project. “The framework we propose today would both ensure an acceleration of regular budget order in the House and Senate, and it would involve all committees of relevant jurisdiction.”

This is an interesting argument worth considering. Still, I’m not so sure that accelerated regular order would improve the prospects for an agreement.

First, it strikes me that the real barrier to a grand bargain hasn’t been the Senate’s filibuster rule. The super committee was guaranteed a fast-track to passage, but that still didn’t motivate the parties to reach an agreement. The more relevant obstacle in 2011 and 2012 has been the bicameral chasm between a Republican House and a Democratic Senate. To be sure, eliminating the need for a sixty-vote cloture margin would smooth the way towards Senate passage. But we could easily imagine that the 60th senator (in 2013, perhaps a GOP senator like Lisa Murkowski) might be willing to sign onto a deal that would still be too moderate to secure the votes of House Republicans (assuming no change in party control of the two chambers). As we saw over the course of the 112th Congress, House passage required more than the consent of the House median (an ideologically moderate Republican) and more than the support of a majority of the GOP conference. The big deals in the 112th Congress only passed if they could attract the votes of roughly 90% of the House GOP conference. Expedited procedures can protect hard-fought compromises from being unraveled on the chamber floors but by themselves don’t seem sufficient to generate compromise in the first place.

Second, and related, I’m somewhat skeptical that the small size of the super committee precluded a viable agreement. By balancing parties and chambers, the group was (in theory) a microcosm of the full Congress. If true, then delegating to the super committee was more akin to delegating to a mini-Congress. Perhaps the BPC’s idea of allowing the standing committees to generate proposals would broaden legislators’ willingness to buy-in to a final agreement. More likely, I suspect that the framework would produce a House bill perched on the right and a Senate bill left of center (since the filibuster ban would reduce Democrats’ incentives to produce a bipartisan bill). That leaves the bicameral chasm still to be bridged, suggesting that accelerated regular order might not bring Congress all that much closer to a bipartisan agreement in 2013. Consent of party leaders remains critical for an agreement.

Third, the BPC proposal is unclear on the precise nature of the legislative backstop. But would either party agree in advance to the framework if they didn’t know whose ox would be gored by the administration when it exercised its power to reform entitlements and eliminate tax expenditures? Perhaps delegating such authority to the executive branch would allow legislators to avoid voters’ blame, making them more likely to vote for the framework. (That said, it’s somewhat ironic that the BPC’s embrace of accelerated regular order flows from its desire to broaden the set of legislators whose fingerprints are visible on the grand bargain.) Regardless, the prospects for cuts in entitlement programs could lead both parties to favor kicking the can down the road again before it actually explodes.

Fast-track procedures have a decent track record in facilitating congressional action. (Steve Smith and I have extolled their virtues elsewhere.) But the most successful of these episodes involve narrow policy areas (such as closing obsolete military bases) on which substantial bipartisan agreement on a preferred policy outcome is already in place. Expecting a procedural device to do the hard work of securing bipartisan agreement may be asking too much of Congress’s procedural tool kit in a period of divided and split party control.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Jonathan Ernst / Reuters

What Senators Need to Know about Filibuster Reform

Thu, 02 Dec 2010 00:00:00 -0500

Dear Members of the Senate,

As you know, the Senate has debated the merits of the filibuster and related procedural rules for over two centuries. Recently, several senators who are advocating changes to Senate Rule XXII have renewed this discussion. We write this letter today to clarify some of the common historical and constitutional misperceptions about the filibuster and Rule XXII that all too often surface during debates about Senate rules.

First, many argue that senators have a constitutional right to extended debate. However, there is no explicit constitutional right to filibuster.^[1] In fact, there is ample evidence that the framers preferred majority rather than supermajority voting rules. The framers knew full well the difficulties posed by supermajority rules, given their experiences in the Confederation Congress under the Articles of Confederation (which required a supermajority vote to pass measures on the most important matters). A common result was stalemate; legislators frequently found themselves unable to muster support from a supermajority of the states for essential matters of governing. In the Constitution, the framers specified that supermajority votes would be necessary in seven, extraordinary situations -which they specifically listed (including overriding a presidential veto, expelling a member of the Senate, and ratifying a treaty). These, of course, are all voting requirements for passing measures, rather than rules for bringing debate to a close.

Second, although historical lore says that the filibuster was part of the original design of the Senate, there is no empirical basis for that view. There is no question that the framers intended the Senate to be a deliberative body. But they sought to achieve that goal through structural features of the chamber intended to facilitate deliberation -such as the Senate's smaller size, longer and staggered terms, and older members. There is no historical evidence that the framers anticipated that the Senate would adopt rules allowing for a filibuster. In fact, the first House and the first Senate had nearly identical rule books, both of which included a motion to move the previous question. The House converted that rule into a simple majority cloture rule early in its history. The Senate did not.

What happened to the Senate's previous question motion? In 1805, as presiding officer of the Senate, Vice President Aaron Burr recommended a pruning of the Senate's rules. He singled out the previous question motion as unnecessary (keeping in mind that the rule had not yet routinely been used in either chamber as a simple majority cloture motion). When senators met in 1806 to re-codify the rules, they deleted the previous question motion from the Senate rulebook. Senators did so not because they sought to create the opportunity to filibuster; they abandoned the motion as a matter of procedural housekeeping. Deletion of the motion took away one of the possible avenues for cutting off debate by majority vote, but did not constitute a deliberate choice to allow obstruction. The first documented filibusters did not occur until the 1830s, and for the next century they were rare (but often effective) occurrences in a chamber in which majorities generally reigned.

Finally, the adoption of Rule XXII in 1917 did not reflect a broad-based Senate preference for a supermajority cloture rule. At that time, a substantial portion of the majority party favored a simple majority rule. But many minority party members preferred a supermajority cloture rule, while others preferred no cloture rule at all. A bargain was struck: Opponents of reform promised not to block the rule change and proponents of reform promised not to push for a simple majority cloture rule. The two-thirds threshold, in other words, was the product of bargaining and compromise with the minority. As has been typical of the Senate's past episodes of procedural change, pragmatic politics largely shaped reform of the Senate's rules.

We hope this historical perspective on the origins of the filibuster and Rule XXII will be helpful to you as matters of reform are raised and debated. Please do not hesitate to contact us if we can provide additional clarification.

Very truly yours,

Sarah Binder
Senior Fellow, Governance Studies, The Brookings Institution
Professor of Political Science, George Washington University

Gregory Koger
Associate Professor of Political Science, University of Miami

Thomas E. Mann
W. Averell Harriman Chair & Senior Fellow, Governance Studies, The Brookings Institution

Norman Ornstein
Resident Scholar, American Enterprise Institute for Public Policy Research

Eric Schickler
Jeffrey & Ashley McDermott Endowed Chair & Professor of Political Science, University of California, Berkeley

Barbara Sinclair
Marvin Hoffenberg Professor of American Politics Emerita, University of California, Los Angeles

Steven S. Smith
Kate M. Gregg Distinguished Professor of Social Sciences & Professor of Political Science, Washington University

Gregory J. Wawro
Deputy Chair & Associate Professor of Political Science, Columbia University

[1] In Article I, Section 5, the Constitution empowers the Senate to write its own rules, but it does not stipulate the procedural requirements for ending debate and bringing the Senate to a vote.

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Sarah A. Binder
Gregory Koger
Thomas E. Mann
Norman Ornstein
Eric Schickler
Barbara Sinclair
Steven S. Smith
Gregory J. Wawro

Publication: The United States Senate

Image Source: © Kevin Lamarque / Reuters

The Negative Impact of the Use of Filibusters and Holds

Thomas E. Mann — Wed, 23 Jun 2010 08:10:00 -0400

In testimony before the Committee on Rules and Administration, Thomas Mann delivered the following prepared remarks on the increasing use of filibusters and holds on the Senate confirmation of presidential appointees.

Chairman Schumer, Ranking Member Bennett, and members of the Committee. Thank you for inviting me to testify today in the third in your series of important and informative hearings on the filibuster.

Testimony presented at the first two hearings usefully clarified the origins of unlimited debate in the Senate, circumstances surrounding the adoption of Rule XXII in 1917 and its subsequent amendment, changing norms and practices regarding the use of filibusters, holds, and cloture petitions, and in recent years the extraordinary increase in the frequency of extended-debate-related problems on major measures before the Senate. dd

I concur with the scholarly consensus that the emergence of an ideologically polarized Senate, with sharp party differences on most important issues, appears to be a major force behind the routinization of the filibuster. The striking unity within each of the party caucuses reflects this ideological separation but also arises from the rough parity between the parties. Control of the Senate is now regularly up for grabs. Both parties have powerful incentives to use the available parliamentary tools to wage a permanent campaign to retain or regain majority status. The resulting procedural arms race has served individual and partisan interests but has diminished the Senate as an institution and weakened the country’s capacity to govern.

The focus of my testimony at this hearing is the impact of the increasing use of filibusters and holds on the Senate confirmation of presidential appointees.

The Constitution provides that the President “shall nominate, and by and with the Advise and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Counsels, Judges of the Supreme Court, and all Other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .” The Framers differed amongst themselves on the proper role of the Senate in the nomination and confirmation process so it is no surprise that this has been a bone of contention between the branches throughout the course of American history. Because it holds the constitutional authority to withhold its approval of presidential appointments, the Senate can wield formidable negative power. How responsibly the Senate exercises that power importantly shapes the performance of the executive and judicial branches.

All presidential appointments subject to Senate confirmation are not equal. Approximately 65,000 military appointments and promotions are routinely confirmed each Congress, with very few (though occasionally prominent) delays or rejections. Many of the roughly 4,000 civilian nominations considered each Congress are handled by the Senate in a similar fashion. These include appointments and promotions in the Foreign Service and Public Health Service as well as many nominations to part-time positions on boards and advisory commissions. In many other cases (U.S. attorneys, U.S. Marshals, and U.S. district judges), a long-standing custom of “senatorial courtesy” gives home-state senators support to object if they are not fully consulted by the White House before nominations are submitted. In addition, a number of fixed-term appointments to commissions, boards, and other multi-member entities are required by their enabling statutes to maintain political balance in some way or to follow an explicit selection procedure. In both cases, these consultations and selection processes go some distance in limiting the potential friction between the branches in resolving their shared responsibility. (Not the entire distance, to be sure. Nominees to the Federal Election Commission have often been subject to prolonged delays, even denying it the ability to have a quorum to conduct business during much of the 2008 election campaign. Similar examples can be found with the Election Assistance Commission and other regulatory bodies and boards.) Consequently, it is no surprise that 99% percent of presidential appointees are confirmed routinely by the Senate.[1]

More problematic are appellate judicial nominations (numbering roughly 25 to 50 per Congress) and the 400 or so Senate-confirmed senior positions in cabinet departments and executive agencies (excluding ambassadors) who serve at the pleasure of the president. In the case of the former, the confirmation process over the last three decades has become increasingly prolonged and contentious. The confirmation rate of presidential circuit court appointments has plummeted from above 90% in the late 1970s and early 1980s to below 50% in recent years.[2] A particularly acrimonious confrontation over the delay of several judicial nominations in 2005 led then Majority Leader Bill Frist to threaten to use the so-called “nuclear option” – a ruling from the chair sustained by a simple majority of senators to establish that the Constitution required the Senate to vote up or down on every judicial nomination (effectively cloture by simple majority). Before Frist’s deadline for breaking the impasse arrived, a group of 14 senators (seven Democrats and seven Republicans) reached an informal pact to oppose Frist’s “reform-by-ruling” and to deny Democrats the ability to filibuster several of the pending nominations.[3] This diffused the immediate situation but did little to alter the long-run trajectory of the judicial confirmation process. Lifetime appointments and high ideological stakes provided ample incentives for senators whenever feasible to use holds and silent filibusters to prevent a majority of their colleagues from acting on judicial nominations.

Theses delays in confirming appellate judges have led to increased vacancy rates, which has produced longer case processing times and rising caseloads per judge on federal dockets.[4] Moreover, the conflict over appellate judges is spilling over to the district court appointments, which are beginning to produce similarly low rates of confirmation.

Even more disconcerting has been the impact of the changing confirmation process on the ability of presidents to staff their administrations. My colleague on this panel, Cal Mackenzie, this country’s preeminent student of the presidential appointments process, has in his prepared testimony made a powerful case that “we have in Washington today a presidential appointment process that is a less efficient and less effective mechanism for staffing the senior levels of government than its counterparts in any other industrialized democracy.” Professor Mackenzie summarizes the longstanding flaws in the present system and documents how it has steadily deteriorated over the last several decades. That deterioration has occurred at both ends of Pennsylvania Avenue. In fact, delays in filling senior executive positions are substantially larger at the nomination than the confirmation stage. This reflects in substantial part a defensive posture by new administrations seeking to reduce or eliminate any possibility of adverse publicity about any of their nominees surfacing after they are chosen. But the trends over the last four administrations place an increasing responsibility for delays with the Senate. As Professor Mackenzie, drawing on important new work on this subject by Professor Anne Joseph O’Connell of the University of California, Berkeley School of Law,[5] notes, the average time taken to confirm nominees in the first year of new administrations has steadily increased (from 51.5 days under George H.W. Bush to 60.8 days under Barack Obama) while the percentage of presidential nominations confirmed by the end of the first year declined (from 80.1% under Bush 41 to 64.4% under Obama).

These discouraging statistics actually understate the problem. Cabinet secretaries are usually confirmed within a couple of weeks while top noncabinet agency officials take on average almost three months. Some nominees have been subject to much more extended delays, putting their personal lives on hold for many months and critical positions unfilled for much or all of a president’s first year in office. Some cabinet secretaries have had to manage with only skeleton senior staffs, with few empowered with the formal authority that is contingent on Senate confirmation. Recent administrations have many horror stories associated with the absence of timely confirmation of its top executives.

The Obama administration is no exception. Indeed, its stories are more numerous and telling than those that came before it. Consider just a few examples. In the midst of a financial meltdown and critical decisions to be made on the implementation of TARP, the Treasury Department had no Senate-confirmed officials in many high-ranking policy positions, including: Deputy Secretary, Undersecretary for International Affairs, Undersecretary for Domestic Finance, Assistant Secretary for Tax Policy, Assistant Secretary for Financial Markets, Assistant Secretary for Financial Stability, and Assistant Secretary for Legislative Affairs. One of those nominees, Lael Brainard, a former colleague of mine at Brookings, was nominated for the key position of Undersecretary for International Affairs on March 23, 2009 but did not get confirmed until April 20, 2010, over a year later. Her problem was tax-related, reportedly over a deduction she claimed on a home office. Yet her husband, Kurt Campbell, was nominated for a post at the State Department and confirmed by the Senate in about two months, even though they filed a joint tax return.

Other critical positions with urgent responsibilities for a Senate-confirmed appointee subject to extended vacancies included Commissioner of U.S. Customs and Border Protection, director of the Transportation Security Administration, head of the National Highway Traffic Safety Administration, and director of the Centers for Medicare and Medicaid Services. To be sure, delays associated with filling these and other senior executive positions often arose during the nominating process and sometimes were associated with genuine concerns about the nominee. But the evidence strongly supports the view that many nominees get caught in ideological and partisan battles in the Senate or become hostages to the personal agendas of individual senators, often unrelated to the nominee or the position to be filled.

Currently, there is no foolproof way of discerning how many nominations are subject to holds by individual senators. The effort to limit secret holds initiated by Senators Wyden and Grassley as part of the 2007 ethics bill has loopholes that have rendered it largely ineffective. One can, however, examine the list of nominations that have been approved by committees and placed on the Senate executive calendar. One presumes that absent a hold or other signal of a filibuster, the Majority Leader would move expeditiously to call up these nominations. Not that long ago it was rare that nominees would linger on the list of pending confirmation for days, weeks, and months. On Memorial Day 2002, during George W. Bush’s administration, 13 nominations were pending on the executive calendar. Eight years later, under Obama, the number was 108.[6]

Senators have long viewed the confirmation process as an opportunity to express their policy views and to get the administration’s attention on a matter of importance to them or their constituents. But the culture of today’s Senate provides no restraints on the exercise of this potential power and no protection of the country’s interest in having a newly-elected president move quickly and effectively to form a government. One telling indicator of the arbitrary and self-indulgent use of holds on nominees is when a successful cloture vote to overcome a longstanding hold is followed by a near-unanimous vote for confirmation. This happens with increasing frequency in the Senate.

In my view and that of virtually the entire policy and scholarly communities, the costs of the serious flaws on our appointment and confirmation process outweigh the benefits. Government agencies are ill-equipped to operate effectively and to be held accountable by Congress; able individuals willing to serve their country are subject to uncertainty and major disruptions in their personal and professional lives; huge amounts of precious time in the White House and Senate are diverted from much more pressing needs.

I understand that subsequent hearings will deal more directly with remedies to the shortcoming of governance associated with obstruction in the Senate. Let me conclude by urging you to consider two proposals: an effective end to anonymous holds on nominations and, more ambitiously, a fast-track system that sets time limits on committee and floor action for the confirmation of senior executive nominations.

[1] Elizabeth Rybicki, “Senate Consideration of Presidential Nominations: Committee and Floor Procedure,” Congressional Research Service, May 8, 2009.
[2] Rutkus, Steven and M. A. Sollenberger, “Judicial Nomination Statistics: U.S. Districting and Circuit Courts, 1977-2003,” Congressional Research Service, February 23, 2004.
[3] Binder, Sarah, A. J. Madonna S, S, and Smith, “Going Nuclear, Senate Style,”Perspectives on Politics, Vol. 5 (4, December): 729-40.
[4] Sarah Binder and Forrest Maltzman, Advice and Dissent: The Struggle to Shape the Federal Judiciary (Washington, D.C.: Brookings, 2009).
[5] Anne Joseph O’Connell, “Vacant Offices: Delays in Staffing Top Agency Positions,” Southern California Law Review (2009) and “Waiting for Leadership: President Obama’s Record in Staffing Key Agency Positions and How to Improve the Appointments Process,” Center for American Progress (April 2010).
[6] ”You Really Got A Hold On Me,” National Public Radio, June 2, 2010.

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Thomas E. Mann

Publication: Senate Committee on Rules and Administration

Image Source: © Jim Bourg / Reuters

@ Brookings Podcast: The Senate Filibuster

Sarah A. Binder — Fri, 28 May 2010 14:39:00 -0400

The founding fathers viewed the Senate as a place where heated rhetoric could cool down, but today the upper chamber is just as fiercely partisan as the House. In this week’s @ Brookings podcast, expert Sarah Binder describes the origins of the filibuster and why the idea of allowing one Senator to block Senate business has its place in history.

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State of the U.S. Senate: The Filibuster and the 60-Vote Majority, with Senator Ron Wyden

Mon, 17 May 2010 08:30:00 -0400

Event Information

May 17, 2010
8:30 AM - 12:00 PM EDT

Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

Perhaps no feature of legislative procedure has received as much attention in recent years as the Senate filibuster. Majorities are typically unable to pass major or minor measures without currying the votes of an often recalcitrant sixtieth senator. The current Senate has cast record numbers of cloture votes as Democratic majorities have sought to advance the president’s agenda. The supermajority threshold has led some senators to argue that old chamber rules are strangling the power and efficiency of the Senate.

On May 17, the Brookings Institution and the Weidenbaum Center of Washington University in St. Louis hosted a conference to explore the political and institutional dynamics that have given rise to the “60-Vote Senate.” Discussion also focused on prospects for reforming the filibuster in light of mounting criticism of the Senate and calls for reform of the chamber’s rules.

Senator Ron Wyden (D-Ore.) gave a keynote address on the strengths and weaknesses of the modern Senate. Senator Wyden was followed by two panels of Senate experts. The first panel—composed of former Senate leadership staff—offered insiders’ views on the state of the Senate. A second panel of congressional scholars offered a broad assessment of the Senate and the procedural and organizational challenges confronting the legislative body; discussion also centered on proposals for reform.

After each panel, speakers took audience questions.

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20100517_wyden

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Steven Smith

Director of the Weidenbaum Center on the Economy, Government, and Public Policy
Washington University in St. Louis

Hon. Ron Wyden (D-Ore.)

U.S. Senate

Richard A. Baker

Historian Emeritus, U.S. Senate

Robert Dove

Parliamentarian Emeritus, U.S. Senate
Professor of Political Science, George Washington University

Martin Paone

Executive Vice President, Prime Policy Group

Norman J. Ornstein

Resident Scholar, American Enterprise Institute

The History of the Filibuster

Sarah A. Binder — Thu, 22 Apr 2010 00:00:00 -0400

Editor's Note: In testimony before the U.S. Senate Committee on Rules and Administration, Sarah Binder counters a number of conventionally held notions about the origins and history of the Senate filibuster. Binder notes that the filibuster was not part of the original design of the Senate and the creation of the cloture rule was not a statement of the Senate’s love for supermajority rules, but rather the product of hard-nose bargaining with an obstructive minority.

Chairman Schumer, Ranking Member Bennett, and members of the Committee. My name is Sarah Binder. I am a senior fellow at the Brookings Institution and a professor of political science at George Washington University. I appreciate the opportunity to testify today about the history of the filibuster.

I want to offer three arguments today about that history.

First, historical lore says that the filibuster was part of the original design of the Senate. Not true. When we scour early Senate history, we discover that the filibuster was created by mistake.

Second, we often say that the 19th century Senate was a golden age of deliberation. But the golden age was not so golden: Senate leaders by the 1840s were already trying to adopt a cloture rule. But most such efforts to bar the filibuster were filibustered.

Third, creation of the cloture rule in 1917 was not a statement of the Senate’s love for supermajority rules. Instead, it was the product of hard-nose bargaining with an obstructive minority. Short-term, pragmatic politics shape contests to change Senate rules.

Allow me to elaborate on these three points.

1. Origins of the filibuster [1]

We have many received wisdoms about the filibuster. However, most of them are not true. The most persistent myth is that the filibuster was part of the founding fathers’ constitutional vision for the Senate: It is said that the upper chamber was designed to be a slow-moving, deliberative body that cherished minority rights. In this version of history, the filibuster was a critical part of the framers’ Senate.

However, when we dig into the history of Congress, it seems that the filibuster was created by mistake. Let me explain.

The House and Senate rulebooks in 1789 were nearly identical. Both rulebooks included what is known as the “previous question” motion. The House kept their motion, and today it empowers a simple majority to cut off debate. The Senate no longer has that rule on its books.

What happened to the Senate’s rule? In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he offered this advice. He said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion. Now, today, we know that a simple majority in the House can use the rule to cut off debate. But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, get rid of the previous question motion, the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book.

Why? Not because senators in 1806 sought to protect minority rights and extended debate. They got rid of the rule by mistake: Because Aaron Burr told them to.

Once the rule was gone, senators still did not filibuster. Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate. It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837.

2. The Not-So-Golden Age of the Senate

Conventional treatments of the Senate glorify the 19th century as the “golden age” of the Senate: We say that filibusters were reserved for the great issues of the day and that all senators cherished extended debate. That view misreads history in two ways.

First, there were very few filibusters before the Civil War. Why so few filibusters? First, the Senate operated by majority rule; senators expected matters would be brought to a vote. Second, the Senate did not have a lot of work to do in those years, so there was plenty of time to wait out the opposition. Third, voting coalitions in the early Senate were not nearly as polarized as they would later become.

All that changed by mid-century. The Senate grew larger and more polarized along party lines, it had more work to do, and people started paying attention to it. By the 1880s, almost every Congress began to experience at least one bout of obstructionism: for instance, over civil rights, election law, nominations, even appointment of Senate officers—only some of these “the great issues of the day.”

There is a second reason that this was not a golden age: When filibusters did occur, leaders tried to ban them. Senate leaders tried and failed repeatedly over the course of the 19th and early 20th centuries to reinstate the previous question motion. More often than not, senators gave up their quest for reform when they saw that opponents would kill it by filibuster—putting the majority’s other priorities at risk. Unable to reform Senate rules, leaders developed other innovations such as unanimous consent agreements. These seem to have been a fallback option for managing a chamber prone to filibusters.

3. The adoption of cloture

Why was reform possible in 1917 when it had eluded leaders for decades? And why did the Senate choose supermajority cloture rather than simple majority cloture? [2]

First, the conditions for reform. After several unsuccessful efforts to create a cloture rule in the early 1900s, we saw a perfect storm in March of 1917: a pivotal issue, a president at his bully pulpit, an attentive press, and a public engaged in the fight for reform. At the outset of World War I, Republican senators successfully filibustered President Wilson’s proposal to arm merchant ships—leading Wilson in March of 1917 to famously brand the obstructionists as a “little group of willful men.” He demanded the Senate create a cloture rule, the press dubbed the rule a “war measure,” and the public burned senators in effigy around the country.

Adoption of Rule 22 occurred because Wilson and the Democrats framed the rule as a matter of national security. They fused procedure with policy, and used the bully pulpit to shame senators into reform.

Second, why did senators select a supermajority rule? A bipartisan committee was formed to negotiate the form of the rule. Five of the six Democrats supported a simple majority rule; one Republican supported a supermajority rule, and one Republican preferred no rule. Negotiators cut a deal: Cloture would require two-thirds of senators voting. Opponents promised not to block or weaken the proposal; supporters promised to drop their own proposal for simple majority cloture—a proposal supported by at least 40 senators. The cloture rule was then adopted, 76-3.

4. Conclusions

We can draw at least three lessons from this history:

First, the history of extended debate in the Senate belies the received wisdom that the filibuster was an original, constitutional feature of the Senate. The filibuster is more accurately viewed as the unanticipated consequence of an early change to Senate rules.

Second, reform of Senate rules is possible. There are conditions that can lead a bipartisan supermajority to agree to change Senate rules. The minority has often held the upper hand in these contests, however, given the high barrier to reform imposed by inherited Senate rules.

Third, and finally, the Senate adopted a supermajority rule not because senators were uniformly committed to the filibuster. Senators chose a two-thirds rule because a minority blocked more radical reform. Short-term, pragmatic considerations almost always shape contests over reform of Senate rules.

[1] The following discussion is largely drawn from Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Brookings Institution Press, 1997).
[2] On the politics of amending Rule 22 in 1917, in addition to Binder and Smith (1997), see Gregory Koger, “Filibuster Reform in the Senate, 1913-1917,” in Party, Process, and Political Change in Congress, V. 2, David Brady and Mathew McCubbins, Eds. (Stanford University Press, 2007), pp. 205-25; see also Gregory Wawro and Eric Schickler, Filibuster (Princeton University Press, 2006).

Authors

Sarah A. Binder

Publication: Senate Rules and Administration Committee

Image Source: Jim Young / Reuters

Truth and Reconciliation: Sidestepping the Filibuster

Thomas E. Mann, Norman J. Ornstein and Molly Reynolds — Mon, 20 Apr 2009 12:00:00 -0400

Editor's Note: After a year of trying to pass health care reform, an effort highlighted by the Blair House summit on February 25, President Obama and Democratic leaders are building a case for using the Senate reconciliation process to push through legislation. Under reconciliation, bills cannot be filibustered and can thus pass the Senate by majority vote. In this article published last year, Thomas Mann, Molly Reynolds and AEI’s Norm Ornstein analyzed how reconciliation has been used to pass landmark legislation.

"Reconciliation" means "restoration of harmony." But as a term of art in budgeting, it has become an act of war. President Obama and most Democrats in Congress hope to include health and education reform in reconciliation instructions as part of the budget process. No mystery why. The sixty vote hurdle in the Senate of the filibuster could scotch these central components of their agenda via united Republican opposition. Bills considered under reconciliation cannot be filibustered and can therefore pass the Senate by majority vote. Republicans are outraged by what they argue is an egregious partisan power grab, one that tramples on Senate rules and norms permitting extended debate and amendment.

What is the precedent for using reconciliation to enact major policy changes? Much more extensive than the architects of the Congressional Budget and Impoundment Control Act of 1974 had in mind-or than Senate Republicans are willing to admit these days. Reconciliation was designed as a narrow procedure to bring revenue and direct spending under existing laws into conformity with the levels set in the annual budget resolution. It was used initially to cut the budget deficit by increasing revenues or decreasing spending but in more recent years its primary purpose has been to reduce taxes. Twenty-two reconciliation bills were passed between 1980 and 2008, although three (written by Republican majorities in Congress) were vetoed by President Clinton and never became law.

Whether reducing or increasing deficits, many of the reconciliation bills made major changes in policy. Health insurance portability (COBRA), nursing home standards, expanded Medicaid eligibility, increases in the earned income tax credit, welfare reform, the state Children's Health Insurance Program, major tax cuts and student aid reform were all enacted under reconciliation procedures. Health reform 2009 style would be the most ambitious use of reconciliation but it fits a pattern used over three decades by both parties to avoid the strictures of Senate filibusters.

To be sure, there is a price beyond the political one for using reconciliation. Elements in bills that are not strictly designed to have a budget impact can be removed on points of order, leaving comprehensive bills less than comprehensive. And the time frame for reconciliation bills is at most ten years, after which they expire unless explicitly renewed (the problem, of course, with the Bush tax cuts.)

The best path would be to have reconciliation as an implicit or explicit threat: if Democrats can employ it to accomplish the policy goal with only a simple majority, Republicans may be persuaded to abandon efforts to use their 41 votes to just say no and instead engage the majority constructively to find common ground. But if that is not feasible, it is perfectly reasonable for Democrats to use the process for health care reform that both parties have used regularly for other major initiatives. The result might be more piecemeal and imperfect, but it would be better than the alternative of no bill at all.

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Authors

Thomas E. Mann
Norman J. Ornstein
Molly Reynolds

Publication: The New Republic

Gridlock on Capitol Hill

Sarah A. Binder — Sat, 20 Oct 2007 12:00:00 -0400

"There's little time left in the year. And Congress has little to show for all the time that has gone by." President Bush minced no words this week in blaming Democrats in Congress for the gridlock we see this fall in the nation's capital. In fact, both parties and both ends of Pennsylvania Avenue are to blame. With ideologically divided parties sharing power and eyeing the upcoming presidential election, we should not be surprised to see stalemate on Capitol Hill.

Democrats took up their gavels in January vowing to change the course of the war in Iraq and to secure a host of modest domestic priorities, including healthcare, education and energy reforms. They also promised to clean up a "culture of corruption" outside the halls of Congress and to promote procedural fairness within. Public approval of Congress rose with the Democrats' return to power. But today, roughly three-quarters of the American public disapproves of the way Congress is performing its job. The president does not fare much better. The public is deeply disappointed in his stewardship of the war and the economy, and disapproving of his veto of a children's health insurance bill.

Democrats do have legislative successes to herald. After 10 months in power, they have enacted ethics and lobbying reform, increased the minimum wage, secured new measures to bolster homeland security and achieved a host of smaller goals. Missing from this list, however, are all the big issues of the day: changing the course of the war in Iraq, overhauling the nation's immigration laws, reforming and expanding healthcare for the uninsured. Numerous other policy initiatives also show slow progress over the year, including efforts to address the nation's energy, farming, education and affordable housing needs. Senate confirmation of nominees slated for the federal courts of appeals has also moved sluggishly.

Such gridlock should come as no surprise. As a lame duck president, Bush has little incentive to sign Democratic legislation. And with just 51 Democratic senators, congressional leaders don't have the 60 votes required to halt a Republican filibuster or override every presidential veto - particularly not as moderates have become an endangered species on Capitol Hill in recent decades. Differences between house and senate Democrats over Iraq policy, the pace of passing federal spending bills and upcoming efforts to reform tax policy are also contributing to Congress's lackluster record.

Which party will pay the price for gridlock? Although Democrats may castigate the president for unpopular vetoes and blame Republicans for blocking major policy initiatives, the public rarely holds the minority party in Congress responsible for stalemate. More often, congressional majorities are blamed for failing to get anything done. This means that neither Democrats nor Republicans are likely to gain the upper hand as the parties fail to compromise over policy disputes.

To be sure, Democrats have an electoral incentive to avoid being tagged as the "do-nothing" Congress as they head into 2008. A record of accomplishments would help prove to voters that they can be trusted to govern. With the even balance of power between the parties, however, Democrats also have an incentive to deny Republicans bragging rights for policy successes. That is a recipe for more gridlock as we enter a presidential election year. The next president and new Congress will be left the challenge of solving the nation's most pressing and vexing problems.

Authors

Sarah A. Binder

Publication: Guardian Unlimited

Filibusters Are Only Half the Problem

Paul C. Light — Fri, 03 Jun 2005 00:00:00 -0400

Senator Bill First, the majority leader, has often invoked the founding fathers to make his case against delaying tactics like the filibuster, especially when such tactics allow a small number of senators to create what he calls "a tyranny of the minority."

But he has shown almost no interest in the founders' similar concerns about tactics that accelerate Senate action, even when those tactics enable a handful of senators to effectively deny the chamber the possibility of reading a bill, let alone debate it.

There is plenty of minority tyranny, for example, in the conference committees that Congress uses to spur legislative agreement between the two chambers. Such committees clearly bypass the founders' inefficient back-and-forth in which the House and Senate are supposed to trade versions of legislation until they finally reach agreement.

These committees have become more powerful over the years, in no small part because Congress stopped instructing them to stay within the four corners of the versions of legislation at issue. In the 2003 conference over President Bush's energy bill, which eventually failed, conferees added $277 million in subsidies for environmentally friendly shopping malls, including one in Shreveport, La., that would have included a Hooters restaurant. As President Ronald Reagan once said, an apple and an orange could go into a conference committee and come out a pear.

There is also enormous opportunity for minority tyranny in the writing of omnibus bills, another legislative accelerant the founders might view as a violation of their constitutional design. Employed after the Civil War to handle the onslaught of private pension bills for disabled veterans, omnibus bills were not used for appropriations until 1950.

Since then, they have become a commonplace vehicle for packaging everything from spending bills to highway projects. Last year's $388 billion omnibus bill not only ran more than 1,600 double-sided pages and weighed 14 pounds, it arrived on the House and Senate floor only hours ahead of passage.

No wonder members missed the provision that allowed Congressional staff members to review the tax returns of individual taxpayers. Although Mr. Frist promised that Congress would work on reforming the use of omnibus bills, filibuster reform has taken precedence.

The founders would also certainly object to the secret gangs that Congress and the president have used to reach compromises on Social Security, budget cuts and tax reform, not to mention the Gang of 14 that put the judicial filibuster on hold, pun intended. As James Madison noted late in his life, "A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both."

Absent the threat of war, history actually suggests that the founders would prefer the filibuster to these accelerants. Whereas conference committees, joint committees and omnibus legislation reduce transparency and accelerate action, at least filibusters force members to declare themselves.

Mr. Frist is not likely to move against these legislative accelerants anytime soon. They help him to enforce party discipline and show strength before his expected presidential campaign. And in any case, Mr. Frist and his supporters have never been interested in stopping minority rule. Conference committees that produce the right legislative packages are fine, as are omnibus budget bills that reward the right members and filibusters that stop the wrong judges.

Despite his rhetoric about the tyranny of the minority, the majority leader has been mostly concerned about the tyranny of the minority opposed to him. That is something the founders, politicians as well as philosophers, would surely understand.

Authors

Paul C. Light

Publication: The New York Times

The Senate Judicial Compromise

Thomas E. Mann — Tue, 24 May 2005 00:00:00 -0400

Fourteen Republican and Democratic Senators reached an agreement last night on judicial nominees. Diane Rehm and guests Thomas E. Mann and C. Boyden Gray talk about what the bi-partisan compromise may mean for the disputed nominees and future Senate negotiations.

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Authors

Thomas E. Mann

Publication: The Diane Rehm Show (WAMU)

Learning From Filibusters Past

Sarah A. Binder — Wed, 18 May 2005 00:00:00 -0400

Melissa Block talks with Sarah Binder about the history and tactics of Senate filibusters.

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Authors

Sarah A. Binder

Publication: NPR's All Things Considered