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The Senate Syndrome
The Evolution of Procedural Warfare in the Modern U.S. Senate
By Steven S. Smith UNIVERSITY OF OKLAHOMA PRESS
Copyright © 2014 University of Oklahoma Press
All rights reserved.
ISBN: 978-0-8061-4592-1
CHAPTER 1
THE SENATE SYNDROME
CONDITIONS SEEMED RIPE FOR Senate filibuster reform in January 2013. As noted in the introduction, Democrats were as agitated as ever about Republican obstructionism. After increasing their numbers from 53 to 55 in the 2012 elections, reform-oriented Democrats thought that the start of the new Congress would be the ideal time to change the Senate's rules to reduce the ability of a minority to block votes on legislation and presidential nominations favored by the majority. Knowing that the minority would filibuster any change in the rules, the reformers plotted a procedural strategy—one considered revolutionary by the minority Republicans—to get a majority vote on a rules package. Known as the "nuclear option," or more tamely as the "constitutional option," the strategy involved persuading a majority of senators to back a point of order that the Constitution implies that a simple majority can get a vote on the rules at the start of a new Congress. Liberal groups organized lobbying efforts to pressure Democrats to pursue the strategy.
The minority party Republicans were frustrated, too. They complained about Democrats closing opportunities for senators to offer amendments, a move that, they claimed, encouraged them to obstruct the majority with more vigor. Republicans promised even more obstruction if Democrats pursued the nuclear option. They could refuse consent to every minor unanimous consent request, obstruct with demands for a quorum, conduct extended debate wherever allowed, and, in principle, make it very difficult to accomplish anything. This is "going nuclear" in a parliamentary body.
Over the previous few years, a handful of Democrats had developed a package of reform proposals that long-term reformers considered quite modest. The proposals included a limit on debate for the motion to take up a bill, a requirement that filibustering senators conduct debate or risk that debate would be ended by a simple majority, and a limit on debate for sending a bill to conference with the House of Representatives. Related proposals included a requirement that 41 senators vote to continue debate (a change from the requirement that 60 senators vote to close debate) and that senators be barred from having objections to unanimous consent requests registered by another senator. The package was considered modest because it did not limit the ability of a large minority to block action on a bill, nomination, or amendment. The limited scope of the proposals seemed to reflect the authors' genuine preferences, but it also may have been necessary to acquire majority support.
The reform proposal appeared to have the backing of a sufficient number of Democrats to gain majority support, but the effort failed. At least a few Democrats refused to endorse the constitutional point of order required to get to a simple-majority vote over the objections of Republicans. They feared that the minority would follow through on threats to retaliate and make Senate life even worse. Critically, Majority Leader Harry Reid (D-NV) indicated that he did not support some of the reforms that his party's leading reformers advocated and preferred to negotiate a package with Minority Leader Mitch McConnell (RKY).
The Reid-McConnell negotiations produced changes that a large majority of senators supported. The most important provisions—limiting debate to four hours on the motion to take up a bill and guaranteeing each party two amendments on a bill—applied only to the 113th Congress (2013–2014) and so became an experiment that is under way as this book is going to press. In addition, changes to the standing rules included ending post-cloture debate on a motion to proceed if cloture is endorsed by leaders of both parties and at least seven senators of each party, and reducing the opportunities to filibuster motions to go to conference with the House. The reforms left untouched the minority's power to block action on a bill, nomination, House amendment, or conference report.
Reformers were disheartened that more fundamental and lasting changes were not made. Perhaps to gain leverage with Republicans, Reid claimed that he had a majority for exercising the constitutional option, and at least some reformers believed that he missed an opportunity to make more meaningful changes in the rules. But more than a few senators of both parties expressed a sense of relief that the Senate had avoided the abyss they predicted would follow exercise of the constitutional option. In the end, without Reid and a handful of other Democrats who followed his lead, reformers clearly lacked even a simple majority for the point of order required to pursue their strategy.
Predictably, Democrats' interest in reform did not end with the Reid-McConnell reforms. By May, Reid expressed frustration with Republicans' unwillingness to allow several presidential nominations to be considered on the floor and with their continued insistence on 60 votes to take up important legislation. Discussion of the nuclear option was renewed and, at this writing, remained a live possibility for many Democrats, including Reid.
THE SENATE SYNDROME
The United States Senate is known for the stability of its rules, but the Senate exposed its procedural fragility in the early twenty-first century. The parliamentary arms race between the parties that unfolded in the previous two decades eventually brought the Senate to the brink of chaos in 2005. Tensions had been building for years—minority obstructionism motivated majority countermoves, generated partisan incrimination, and led to more obstruction and preemptive action. In the spring of 2005, the majority leader promised to change the application of the Senate's most distinctive rule, Rule XXII, by a ruling of the presiding officer, rather than suffer more delay in acting on several judicial nominations. The minority promised to retaliate by going nuclear—making the Senate ungovernable by obstructing nearly all Senate action—but a small group of senators negotiated an arrangement that allowed neither party to follow through on its threats.
While it did not go "nuclear" in 2005, the Senate spiraled into all-out "conventional" parliamentary warfare in the following years, which motivated the negotiated changes in the rules in 2013 (chapter 6). Over that period, minority obstruction intensified and majority leaders frequently took steps to restrict debate and amending activity. The result is a Senate, an institution historically distinguished for the flexibility and informality of its floor proceedings, that is more bound by formal rules and precedent and more frequently tied into parliamentary knots than at any time in its history. In today's Senate, each party assumes that the other party will fully exploit its procedural options: the majority party assumes that the minority party will obstruct legislation, and the minority assumes that the majority will restrict its opportunities to offer amendments. Leaders are expected to fully exploit the rules. Senators of both parties are frustrated by what has happened to their institution.
I call this "obstruct and restrict" pattern the Senate syndrome. It is not simply a matter of experiencing more filibusters or suffering under an irritable majority leader who is quick to file for cloture or block amendments. It is a combination of symptoms that have changed senators' expectations about how their colleagues will behave. It has changed the character of the Senate.
My purpose is to describe and explain the Senate syndrome. While some features of the Senate syndrome have appeared only in recent years, the syndrome did not emerge in an instant. It has a history, an important history, that stretches over many decades. In spite of pleas from senators for self-restraint, it is not likely to fade away soon.
I begin this chapter by addressing the fundamentals of how senators govern themselves. As with many legislative or parliamentary bodies, the Senate has a decision-making process that is guided by constitutional requirements but is given essential detail in rules, precedents, and practices of the senators' own making. These rules and practices affect policy outcomes, the role that senators and the Senate play in American governance, and the accountability of senators and their parties to the American people.
THE LANDSCAPE
In recent decades, senators' strategies have changed in fundamental ways. I will detail these in the next few chapters, but we can start with figure 1.1, which provides an overview of the frequency with which cloture motions have been filed. Cloture motions are usually filed by the majority leader in response to a minority threat to prevent a vote on a bill or nomination. They have other purposes, such as barring nongermane amendments, but there is little doubt that a large increase in minority obstruction has driven the general pattern evident in the figure.
The pattern is reconfirmed when we look at major legislation, as in figure 1.2. In this figure, I take advantage of Congressional Quarterly's annual listing of "key votes," which are the 20 or so votes that are judged to be the most critical on the most important legislation, nominations, and treaties in each Congress. The figure shows that most major legislation in recent Congresses has been subject to a cloture motion (and some form of minority obstruction).
The pattern in figure 1.1 shows a step increase in cloture motions in the early 1970s, another in the 1990s, and yet another at the end of the first decade of the twenty-first century, after the Republicans lost majority control in the 2006 elections. The pattern of increasing obstruction is smoother for major measures, but the same general trend is evident.
The character of Senate policy making has changed in a fundamental way in recent decades. The trend in these figures is only the most conspicuous feature of the political record of obstruction and response that has created a Senate that is often tied into parliamentary knots, bound by the application of formal rules and precedents, impermeable to public scrutiny, and unable to meet the expectations of the vast majority of Americans.
GOVERNING THE SENATE
How senators govern themselves is already an important subject to political scientists who study political institutions. Americans rarely give the subject much attention, but we should give it our attention now. To begin, we must understand where the Senate's procedural rules originate.
Senators determine most of the formal rules, precedents, and informal practices that govern their institution's policy-making process. At the start of any two-year Congress, senators inherit rules, precedents, and practices from previous Congresses, but they are empowered to accept or change features of their inheritance, subject to a few requirements of the U.S. Constitution. Remarkably, after 225 years, there remains genuine and deep disagreement among senators about how they can exercise their power to determine their own rules.
The Constitution provides only limited guidance to senators about how they should run their institution. The Constitution, of course, assigns two senators to each state, requires senators to be thirty years of age and citizens for at least nine years, and gives senators staggered, six-year terms. State-based representation, equal representation of states, and long, staggered terms have influenced the Senate's behavior in fundamental ways (Fenno 1982; Lee and Oppenheimer 1999).
The Constitution provides for a presiding officer. It makes the vice president of the United States the president of the Senate, who may vote only when the Senate is equally divided. As a result, the president of the Senate is not a senator and, in practice, is more closely connected with the president of the United States than to senators and their parties. The political separation of the Senate from its presiding officer has had a significant effect on the procedural development of the institution (Gamm and Smith 2000). In the House of Representatives, the speaker is both presiding officer and leader of the majority party, which has allowed the position to become powerful. The president of the Senate has only ministerial and ceremonial duties as presiding officer, although, on a few occasions, parliamentary rulings of the presiding officer have proven important.
The Constitution also provides that "the Senate shall chuse [sic] their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." The informal norm of electing the most senior member of the majority party to be president pro tempore did not emerge until the mid-twentieth century. Previously, the Senate had often elected a president pro tempore who had proven skills in presiding without regard to seniority (Gamm and Smith 2000).
On procedural matters, the Constitution says little. It gives each senator one vote and requires the Senate to keep a journal of its proceedings. It provides that a two-thirds majority of voting senators is required to expel senators, ratify a treaty, convict an impeached federal official, override a presidential veto, or approve an amendment to the Constitution. Otherwise, the Constitution is silent on the decision rule, but both the House and Senate assume that a simple majority is implied to be the standard decision rule. As we will see, the implied decision rule remains a central feature of today's debates about reform of the Senate's rules.
Otherwise, senators are left to devise important details of their institution's formal rules. Nothing in the Constitution dictates how senators are to prepare legislation or other matters for a vote. Instead, Article I, Section 5, provides that "each house may determine the rules of its proceedings." Over the decades, the Senate has acquired forty-four standing rules, many of which have been amended several times.
CHOOSING RULES
Most of the Senate's typical policy-making process is structured by the rules it has adopted. Senators set the rules that govern the Senate's agenda, parliamentary procedures, committee system, party privileges, relations with the House of Representatives, and the procedures by which they consider presidential nominations and treaties. The absence of detail in the Constitution about these aspects of Senate procedure created the opportunity for the Senate to adopt Rule XXII, which currently provides for a three-fifths majority to end debate on legislation and is central to the Senate syndrome.
The Senate's procedural rules do not start and end with the Constitution and its standing rules. As I outline in chapter 11, the Senate has allowed, even encouraged, limitations on floor debate and amendments in statutes. Many of these statutory rules were central features of major legislation. Moreover, points of order decided by the presiding officer or by a Senate majority added important interpretations to the standing rules. For example, the right of first recognition accorded to the majority leader, which gives the majority leader the opportunity to make a motion before other senators do, is a precedent that dates only to the 1930s and is now an essential feature of everyday Senate proceedings. The large body of precedents is reported in Riddick's Senate Procedure: Precedents and Practices.
As a matter of social science, explaining senators' choice of rules is a complicated matter (Binder 1997, 2006; Binder and Smith 1997, 1998; Schickler 2000). We might like to think that the "public interest" and abstract principles about good and fair rules guide these choices, but the public has diverse interests, and democratic rules come in many forms. In fact, a wide range of political considerations influence senators' choices about rules, including senators' personal and state interests, partisan and factional interests, and the Senate's institutional interests, all of which evolve over time.
The trade-off between majority rule and minority rights is a central feature of rules in all legislative bodies. Most legislative bodies achieve some balance between allowing a simple majority to decide a question and allowing the minority a right to participate in policy making in a meaningful way. Minority interests may be preserved in a variety of ways—a right to offer amendments, an opportunity to persuade legislators and win majority support through debate, a requirement for more than a simple majority to adopt important motions, or an election system that gives the minority a chance to become a majority. In many settings, charters or constitutions determine the mix of majority and minority advantages, but in some, like the houses of Congress, rules and laws put in place by legislators themselves shape majority rule and minority rights in vital ways.
(Continues...)
Excerpted from The Senate Syndrome by Steven S. Smith. Copyright © 2014 University of Oklahoma Press. Excerpted by permission of UNIVERSITY OF OKLAHOMA PRESS.
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