Towards an Active(ly Functioning) Senate

In Democratic Governance, Political Ideology, Political Parties, Politics, Progressivism, Public Sector on March 31, 2010 at 1:05 pm

Introduction:

Amidst the celebrations over the passage of health care reform, it’s important to note how long and how grueling the process was to pass this law. Committees began drafting bills back in June of 2009, the House committees finished their “tricommittee” bill in July, then there was the interminable delay through August when Baucus’ cabal met as the first town halls exploded in a carnival of lunacy, then further delay until the Finance Committee finally released the health care bill in October. As November rolled around, the House became the first chamber to actually pass legislation, followed by the Senate on Christmas eve – and then there was another full three months of agonizing delay and negotiation until health care reform passed into law.

All in all, the process took ten months from the introduction of legislation to the enactment of law – and even introduction itself had been preceded by months of committee hearings, and those in turn preceded by a year-long debate over health care during the Democratic primaries and the election of 2008.

Given the manifest reality of what needs to be done – high-caliber jobs bills, climate change legislation, financial regulation, immigration reform, labor law reform, to say nothing of DADT repeal and ENDA – we can no longer afford a system where a once-in-a-generation supermajority takes 10 months to pass priority legislation.

Institutional reform in the Senate is a necessity – but what is needed is not just majority rule, but majority rule within the majority.

Majority Without Discipline:

In order for legislative government to function, there must form a majority of the legislature that has a common agenda, so that legislation can be considered and passed by the assembly in a continuous fashion. Otherwise, the chamber dissolves into a chaotic battle of all against all, as individual politicians jostle to push their ideas to the floor ahead of everyone else while fighting any measure that might steal attention from theirs, and bills collapse under the weight of thousands of amendments attached by legislators who have no commitment to the success of the underlying measure.

When a majority of the chamber can agree on a common agenda, it creates a structure for the legislative process: everyone knows which bills will be voted on and roughly in which order, members of the majority at least know that while not everyone will agree on the details of proposed bills that there is a common commitment to pushing them through the legislative process and negotiating differences rather than trying to scuttle the whole effort, and there is a sense of loyalty that forms between legislators that creates the trust necessary for collaboration to occur.

To construct and defend this agenda from the opposition, a majority must create structures and rules to enforce members’ prior agreement. Normally, this includes an elected leadership who have some form of authority over members, a platform that’s voted on by all the members of the majority, party whips who inform members that their votes will be required on agenda items and positions decided by the leadership, and some form of reward and punishment for members who violate agreed-upon rules. It also requires majority rule within the chamber.

The problem that is hamstringing the U.S Senate is that we lack a solid system of parliamentary discipline – as attested to by the manifest disloyalty to the party’s platform and leadership by conservative “Democrats” like Joe Lieberman, Blanche Lincoln, Ben Nelson, et al. – and Senate rules that allow a majority to pass legislation normally. This is hardly a new phenomenon – in the 1930s, especially after 1937, FDR’s New Deal reforms were continually blocked by an alliance of Republicans and Dixiecrats, the latter of whom broke with the party’s platform and leadership, and the then-two-thirds requirement for invoking cloture. In the 1950s and 1960s, we saw civil rights legislation repeatedly frustrated by Southern Dixiecrats who used the filibuster on civil rights legislation – even when a majority of their caucus supported the measures.

So how do we reform the Senate to achieve both majority rule and parliamentary discipline?

Three Changes for A Dynamic Majority:

  1. Filibuster Reform: Filibuster reform is one of those things that is necessary but not sufficient to transform the Senate into a functioning legislative body. Luckily, one of the outcomes of the health care debate and the monumental obstructionism practiced by the opposition (112 filibusters in the 110th Congress and over 40 in the first three months of the 111th Congress; 70 holds on nominees by just Senator Shelby of Alabama) is that a number of Senators, including members of the leadership such as Majority Leader Reid, Party Whip Durbin, Rules Committee Chair Schumer, and HELP Chair Harkin, as well as members of the freshmen senate class led by Senator Bennet. At the moment, there are several proposals – all of which look towards the opening of the 112th Congress, at which time the number of votes needed to adopt new rules drops to a 50-vote majority (from the 67 votes needed to change the rules in the middle of a session), as the moment to act.
    1. Harkin’s Proposal: Harkin’s proposal (which ironically was was co-sponsored by Joe Lieberman back in the 90s) is based around a quite common theme – lowering the vote threshold for cloture – and attempts to moderate by enacting a sliding scale threshold. Cloture votes would require 60 in the first round, 57 on the second, and then 54, and 51, with a two day waiting period in between each vote. While reducing the cloture threshold would allow for majority rule in passing legislation, one of the unintended consequences of this reform would be to really slow down the process: any vote could take up to 10 days between the first and last cloture motion. And as we saw in the health care debate, legislation can be filibustered at multiple stages: the rule can filibustered, moving to consideration can be filibustered, making reconciliation changes can be filibustered, and appointing conferees to meet with the House to iron out changes can be filibustered. If each vote takes 10 days, then a determined opposition can still bog down the Senate for upwards of a month at a time.
    2. Bennet’s Proposal: Bennet’s proposal is a quite interesting mix of reform proposals, including lobbying and earmark reform, and it shows a commendable understanding that fixing the Senate is a process that includes the entire institution, not just one motion. In addition to the other measures, the core of his proposal includes: abolishing the anonymous hold (that can also be used to grind the institution to a halt as a filibuster of one), requiring holds to be bipartisan and time-limiting them to 30 days (2 days if partisan), ending the filibuster on procedural motions, and flipping the onus of filibustering on the opposition. Instead of requiring 60 votes to cloture, 41 senators would need to be present and voting to prevent cloture (which would require the Strom Thurmond-style 24 hour holdout) – and after three failed cloture votes, such a filibuster would need to become bipartisan or the threshold for successfully filibustering would rise to 45. This isn’t a perfect fix – you still have the problem that cloture still takes two days to “mature” plus another 30 hours, and that 55 senators could still be blocked by 45 senators – but by reducing the filibuster to a single vote on the measure and forcing filibustering Senators to round up the votes and keep them on the floor, it would make the filibuster a much less reliable and much more difficult tool to use. Of the three proposals circulated by Senators, this one seems the most worthy.
    3. Durbin’s Proposal: Durbin’s proposal is one that you hear constantly in public complaints about the filibuster – make them actually filibuster! It’s not actually a rules change so much as a change in the way of doing business. At the moment, instead of actually filibustering – stopping consideration of all other measures and shutting down the Senate until either the minority or the majority gives up – Senators agree to acknowledge threats of filibuster, pull controversial legislation off the floor until 60 votes for cloture can be rounded up, and move on to other legislation in the meantime. Unlike the old way of doing filibusters, this at least allows the Senate to keep functioning on non-controversial measures while a filibuster is going on, but the problem is that it eliminates any disincentive against filibustering. Making Senators filibuster doesn’t particularly change the math, but it does make conducting a filibuster more onerous on both sides – which is why I think this isn’t the way to go if our objective is a Senate that can move legislation in a timely fashion.
    4. Cutting to the Chase:  As is the case here on The Realignment Project, it’s always a good idea to introduce ideas that push the Overton Window a bit wider, and shift the terms of the debate such that proposals like Harkin’s or Bennet’s shift towards the center rather than being the left-most option until we inevitably get negotiated down to nothing. So here’ s my proposal: reverse the mistake the Senate made in 1806 when it accidentally purged the “Previous Question” motion from its Rules. Calling the previous question in parliamentary procedure is a non-debatable motion to end debate and move to a vote on the subject being debated – and one can call the question on a motion or a vote on a bill or anything else. Ironically, the House initially didn’t have a rule that allowed for calling the previous question until 1811, and it took until 1840 for the rule to be fine-tuned to the point where the motion was a viable procedural tactic for moving legislation. It is the Previous Question that makes the House the efficient, functional, majoritarian body it is today. Re-establishing the Senate Rule eliminated in 1806 would be the simplest reform imaginable, cutting through all of the Senate’s institutional problems like Alexander chopping through the Gordian knot. No need for complicated reforms to holds and procedural motions, no need for unanimous requests in order for committees to meet after 2pm.
  2. A Democratic Caucus: however, without establishing a basic parliamentary discipline in the majority caucus, fixing the filibuster would simply move counter-majoritarian obstruction from without to within. This is a much-debated issue, especially in January 2009 when the fate of Joe Lieberman was being decided by the Democratic Caucus after his repeated disloyalty to the Democratic Party and its nominee for president. The problem at present is that, unlike in countries with strong party traditions, we don’t have a system whereby the party can enforce discipline by expelling elected officials from the party and denying them renomination (witness what happened in Connecticut); our parties are looser, both in terms of who can be a Democrat (unlike in most countries, anyone can become a Democrat by registering to vote as one – there’s no system of application and paying dues, and there’s no way to expel anyone from the party no matter how abhorrent their views are), how Democratic candidates are nominated, and how independent the local party institutions are from elected officials. There are, however, ways to get around that:
    1. Majority Chairs: as proposed by Senator Brown of Ohio, one thing that could be done is to shift from a system where committee chairs (the biggest prize in Senatorial politics) are selected by seniority to a system in which chairs are elected by a majority vote of the Democratic Caucus. This would create huge incentives for party loyalty and greatly disincentivize betraying the party – especially on procedural issues. Throughout the health care debate, for example, we had conservative Democrats like Max Baucus (Chair of the Finance Committee), Kent Conrad (Chair of the Budget Committee), Blanche Lincoln (Chair of the Agriculture Committee), and Joe Lieberman (Chair of the Homeland Security and Governmental Affairs Committee), forcing the majority of the caucus to back down again and again over the public option, Medicare buy-in, and other issues without a single consequence. This is also a reform that would combine good politics with good policy – one of the outcomes of our current system is that committees are led by Senators who are beholden to the interests of stakeholders they are supposed to oversee: Ag committee chairmen and agribusiness, Banking committee chairmen and banks and credit card companies, and so on. A majority vote would put a brake on that process, and would ensure that unlike in the past when the “Old Bulls” could kill legislation in their committees (the racist Senator Eastland blocked civil rights legislation for years because he was the chair of the Judiciary Committee, for example), committee chairs could not kidnap major legislation.
    2. Procedural Loyalty Oath: in my eyes, this is the basic minimum test of loyalty in a parliamentary bloc – sticking together on procedural votes to get legislation voted on. What kind of sanctions parliamentary blocs have to enforce this loyalty with varies – famously, Charles Stewart Parnell of the Irish Parliamentary Party enforced his parliamentary “party pledge” by requiring an unsigned letter of resignation from every MP in his Party – but at the very least, there should be a formal statement that we can hold Senators accountable with.

Conclusion:

While institutional reform might not be as “sexy” as health care reform, this absolutely should be a major agenda item for progressives. In our current supermajority, weak caucus Senate, the “median senator,” upon whom the success or failure of legislation depends, is the 60th-most progressive Senator, Ben Nelson (net progressive score of +8), whose repeated betrayal of the party on health care and student loan reform and many other areas needs little reminding.

In a majority rule Senate, the “median senator” shifts to the 50th Senator, Senator Kay Hagen (net progressive score of +41). A majority rule Senate is a progressive Senate.

  1. I mostly agree with what your saying but it seems to me that by not allowing party members to cross sides more and smaller parties might be formed or the major parties might relax their platforms to keep senators in the party that might splinter out.

    What would be the incentive for keeping with a 2 major party system?

    • Well, there’s variations on how strict party discipline has to be – there is a happy medium between where we are now and say, the Labour Party, which expels anyone who votes against the whip. However, there are certain structural characteristics that would keep the two party system going – our first-past-the-post method of elections, and the presidential system.

  2. […] the top, as I’ve discussed before, you need parties […]

  3. […] the top, as I’ve discussed before, you need parties […]

  4. […] the bill failed with 56 senators voting in the affirmative not only sharpens the ironies of the anti-democratic nature of the Senate, but also shows that we’re stuck in the middle of a full-blown austerity […]

  5. […] First, it sets arbitrary limits on the state through an overall revenue cap of 21% of GDP, and caps on discretionary spending; this is completely outside the scope of the commission and interferes with the democratic process by which the people decide – through their elected representatives – what the state should look like. Moreover, by establishing both a point of order and abatement procedure that would require 60 votes to pass any bill that would take us above the cuts, this proposal would further chain us to the anchor of supermajority. […]

  6. […] the Democratic Congress had rammed through a stimulus bill via budget reconciliation or had abolished the filibuster altogether, no one would really care as long as the underlying legislation was something effective that people […]

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