Wednesday, November 28, 2012

The Senate Is Not A Rules Driven Institution. Yet.

Filibuster reform is pushing its way towards the top of the news today, as both parties are using fiscal cliff negotiations as the opening salvo on filibuster issues. Current proposals seem to revolve around removing the filibuster of the "motion to proceed", and to require an actual "talking filibuster". More aggressive proposals, such as the Merkeley/Bennett proposals that would slowly shrink the number of votes required to end debate, but guarantee the minority several chances to amend a bill, or to eliminate the filibuster on nominations, don't seem to be getting much consideration. Nor have proposals to increase the voting requirements on the filibustering party by placing the burden on the minority of finding 40 votes to filibuster (rather than 60 votes to break it), or by moving the vote requirement to three-fifths of all members present (meaning that all the filibustering Senators would have to stick around Washington). People are starting to game out what might happen if Democrats actually make good on their threats to curtail the filibuster.

Over at Ezra Klein's Wonkblog, Brad Plumer points out that the Mitch McConnell (R-KY) will have plenty of procedural tools available destroy the Senate in retaliation for filibuster reform. This has always been the case, but is somewhat beside the point. The way the Senate ever gets anything done -- today, at least -- is by not applying procedural tactics to their maximum extreme. I explained this in somewhat more detail in a cheekily-titled post "Commodore Barbossa & Wil Wheaton Explain Senate 'Rules'", but for a more formal description, let me turn the mic over to former Bill Bradley staffer Mark Schmitt. You should read his whole essay, but let me quote it at some length here:
It took me a while to grasp that the Senate is not a rule-driven institution. It has rules, but they don't drive the process. They are more like a toolbox made up of procedures and tactics to be used for certain conditions at certain times. ... the rules that exist can be broken or bypassed at will: Senator Byrd once pointed out that every rule of the Senate could be waived by consent, except for the rules governing who is a Senator.

That makes the Senate a kind of improvisational theater, rather than a formalized process, and while power is not distributed equally within it, every Senator has the power to initiate action (offer an amendment) or block action. ... That engenders a kind of respect or acknowledgement of each colleague. My former boss, Senator Bradley, once said something in a campaign debate early on in the period when I worked for him: "You hold power, but you must never claim power." I didn't fully understand what he meant until a few years later -- it means that whatever power you have derives entirely from your ability to influence others, create coalitions, form alliances, be entrepreneurial, etc. No one in the Senate, not the Majority Leader, not the chair of the Finance or Appropriations Committees, holds even a fraction of the actual power of their counterparts in the House of Representatives, because the power they have, if they "claim" it without consent, is so easily undermined.
...
The good news is that the Senate is an adaptable institution, and the current climate was created by deliberate choices by Senator Frist, who, like the president, seems to think he's some kind of CEO. Those choices can be undone, and probably will be.
Importantly, Schmitt observes that the conditions which forced the Senate to function in this more congenial, bipartisan fashion no longer exist. Party alignment now corresponds with ideological preference, in a way that it didn't as recently as the late 1990s. Typical Senate business no longer requires a bipartisan coalition. Budgets, when they happen, take place under reconciliation rules that require only a simple majority. The three major pieces of legislation during Obama's first term-- the stimulus bill, the Affordable Care Act, and Dodd-Frank--passed with a grand total of five or six Republican votes. Sure, you can get some bipartisan agreement on a smaller-bore issue like patent reform, but the major issues of the day no longer require the two parties to work together in any meaningful sense. Under these circumstances, where the big ticket agenda items aren't being solved via anything that looks remotely like consensus building, we should expect that a determined minority will continue to use every available tool to obstruct and delay.

The situation has to give in one direction or another. Either Senators will realize that the preservation of existing procedural rules requires them to return to social norms that engender more respect between the majority and the minority; or the rules of the Senate will change to mute the minority's power to obstruct the majority. But the current situation, where the written rules of the Senate give outsized power to a minority that routinely exercises it, is not sustainable.
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