Is the U.S. Senate Obsolete–II?

Picking up from last FridayFixing the filibuster: the “Nuclear Option?”


Fun Fact:  One historian believes that the filibuster originated, not as a deliberate and cherished bulwark against runaway majoritarianism, but as a mistake:

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.

As adopted in 1917, Rule XXII required a two-thirds (67) vote to close debate and proceed to vote; that threshold was reduced to 60 votes in 1975.  Consider:

  • There were only 60 filibusters in the first 30 years after the adoption of the cloture rule in 1917, and a total of only 20 filibusters during the next 20 years, from 1950 to 1969.  Minority parties have upped the ante over the past 20 years, as they’ve found themselves in that position.  Since 2007, the GOP has filibustered legislation with majority support 78 times.  In 2009 alone, the first half of the 111th Congress, there were a record 67 filibusters.
  • The number of cloture votes in the Senate has doubled in the last decade, and has risen to triple the number of cloture votes called for 20 years ago.  The number of formal cloture motions has doubled since 2006.  The 111th Congress also surpassed the 139 motions filed in the 110th Congress.

The last two decades saw a marked increase in the use of two techniques by individual members to threaten Senate business.  “Holds” are requests filed with the Senator’s party leader to delay floor action.  “Blue slips” are more formal “holds” that are filed to indicate support or opposition to judicial nominees.  These threats are significant because the upper body’s schedule is set essentially by “unanimous consent” agreements between the Majority and Minority Leaders governing the conduct of its business.  While Rule XXII allows three-fifths in the chamber to agree to proceed to consideration and a vote on an obstructed measure, doing so is time-consuming.  A cloture petition must lie over for two calendar days before it is voted on; then, an additional 30 hours of debate and amending activity can occur before a final vote is taken on the bill or nomination.  The Senate simply lacks the time to attempt to invoke cloture on every obstructed bill or nomination.  “Holds” by single Senators have been used in specific instances in recent years to block 70 executive nominations and all judicial nominations, for a period of years.

In short, obstructing Senate business has become more rule than exception—prompting one scholar to declare that “the Senate has ceased to be a functioning organization.”  The result?  The Congress as a whole is less inclined and less able to do the most basic work of governing.

What can we do about it?  The first and most obvious answer: the Senate can amend its own rules, from lowering the threshold of votes needed for cloture, up to correcting Aaron Burr’s mistake.





In December 2010 a small group of Senators, led by Sen. Tom Udall (D-CO), announced that they intended to open the 112th Congress last year by exercising the “constitutional option”—invoking Article I, section 5 of the Constitution, which states that “each House may determine the Rules of its Proceedings,” to support consideration of a floor motion that the Senate take up and adopt its rules by simple majority vote at each new session.  The Senate’s Standing Rules offer two impediments.  Rule XXII requires a two-thirds vote of all Senators present and voting to end debate on a rules change, and Rule V provides that the Rules themselves are perpetual: “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”  Sen. Udall and his allies base their case in part on historical precedent.  In 1917 and on many occasions since, the Senate has debated whether this constitutional rulemaking power allows a simple majority to alter the Senate’s Standing Rules at will.  At least four times, changes to the Senate Standing Rules were influenced by attempts to use the constitutional option.  Simple majorities have changed Senate procedures governing debate by setting precedents or adopting Standing Orders that altered the operation of the Standing Rules, without amending their actual text.   They also rely on the constitutional principle, upheld by the Supreme Court, that each Congress must be invested with the same powers of its predecessors, so a present Congress may not act to diminish those powers.

The reformers were also careful to distinguish their effort, to be undertaken as adoption of new rules at the beginning of a new Congress, from the so-called “nuclear option,” a phrase used to describe stopping a specific filibuster by raising a point of order, asserting that the Senate must be able to reach a vote on nominations or procedural changes in order to exercise its constitutional “advice and consent” or rulemaking power effectively.  By sustaining such a point of order, the chair would establish precedent for limiting consideration of those matters.  Opponents of the ruling could appeal the ruling of the chair, and could attempt to prevent a vote on the appeal by filibustering, but the Senate could confirm the ruling by adopting a nondebatable motion to table the appeal—by a majority vote of Senators present.  The “nuclear option” has arisen twice recently:

  • In April 2006, Republican Majority Leader Frist proposed to end Democratic filibusters of Bush Administration judicial nominees; Republicans held 55 of 100 seats at the time.  A “nuclear” confrontation was averted when 14 Senators, seven from each party (dubbed “the Gang of 14”), signed an agreement in May limited to that session.  The seven Democrats would no longer vote along with their party on filibustering judicial nominees, except in “extraordinary circumstances;” in turn, the seven Republicans would not support exercise of the option.
  • Last December 22, Majority Leader Reid and his party thwarted nine Republican motions to suspend the rules to allow consideration of additional amendments to a bill on which debate had been ended by a 62-38 vote.  (The minority party’s intention was to force Democrats to vote on an amendment containing provisions of the President’s jobs bill they did not support.)

Senator Udall and his allies were never given the opportunity to exercise their “constitutional” option, despite declared support from a majority of his caucus’s members.  Instead, late last January the two leaders unveiled an alternative package of less drastic changes:

  • Forbidding the use of “secret holds” by Senators to prevent consideration of bills or nominations anonymously;
  • Surrendering their power to vet presidential appointments to some 400 of the 1,200 posts pending confirmation.
  • Banning the practice of insisting that all amendments to a particular measure be read aloud on the Senate Floor, provided they had been available publicly for three days.

Senator Reid has promised to entertain the “constitutional option” if President Obama is re-elected and his party retains control of the Senate.  Common Cause filed a lawsuit May 15, asking the U.S. District Court to declare Senate Rule XXII in violation of the constitutional principle of majority rule.

Either solution assumes that collective respect for the institution and its constitutional, rulemaking, and legislative missions trumps the partisan and individual advantages of the status quo.  From his own research, Koger has concluded that, historically, changing the cloture threshold has not reduced filibustering:

The adoption of the cloture rule in 1917 had essentially zero effect on final passage margins or appropriations bills or on the number of filibusters.  Subsequent reforms in 1949 and 1959 had minimal effects on the number of filibusters, while the 1975 revision to lower the cloture threshold from two-thirds of voting senators to three-fifths of the chamber may have actually  increased the number of filibusters. Unless senators impose simple and immediate majority rule, any further reductions in the cloture threshold will likely lead to senators filibustering more often to regain any leverage they lost due to the reform.

 Perhaps reforming elections to make both candidates both more representative of and accountable to the electorate in both houses, and to free them from the burden and evils of raising and spending money to get re-elected, would be sufficient to revive their sense of collective purpose.  In the face of recent evidence, though, I think the continued value of the institution should be examined honestly and, on balance, whether it’s the best way to ride herd on any President’s power to appoint and to negotiate international treaties.  After all, a unicameral legislature works fine for Nebraska, and elsewhere on the planet it’s the coming trend.  Among the 267 recognized principalities worldwide—if you’re keeping score, that’s 195 countries and 72 territories and other dependent areas—226 have a legislative branch; 142 are unicameral.  (Data courtesy the CIA World Factbook.)

If we decide that’s too big a step, maybe we can look to our northern neighbor and former colonial landlord for guidance.  Both Canada and the United Kingdom have appointed upper houses.  (Where do you think our boys got the idea?)  Consisting mostly of their “One-Percenters,” their “Lords” serve indefinite terms and their collective powers over day-to-day business are relatively insignificant.  Hell—given their current paralysis, bipartisan incumbency advantage, and their current average net worth of $13,224,333, from a personnel standpoint we’re already there.

Harry Truman had a great idea. He believed that all former Presidents should be seated ex officio in the Senate, so its members would have the benefit of their actual experience and acquired wisdom.  How’s this for a conversation-starter?  We take Truman’s idea and combine it with long-term appointments of our own bluebloods.  A pledge of some significant, minimum portion of their wealth to public works could be the price of admission, and—instead of spending vast sums to turn the “world’s greatest deliberative body” into a congregation of handmaidens—they might actually learn from retired CEOs-in-Chief that running a country isn’t anything like running a business.

They want speech?  Let ‘em speak in public, where we can keep an eye on ‘em, hold ‘em up to their own words—and impeach ‘em, when necessary.

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