Tuesday, July 27, 2010

Is 51 the New 67?

Excellent post from Ezra Klein today on the actual mechanism for changing Senate rules.  As he reports, Tom Udall and other reformers are urging a vote on the Senate rules at the beginning of the next Congress, claiming that no prior Congress can bind a future Congress.  (I'm not as thrilled with calling it the "Constitutional option," since I believe that it is no more Constitutional than leaving the rules as is, but that's how these things are). 

The bottom line on this is that there's really very little recourse for the minority if the majority chooses to change the rules.  No one believes the courts would intervene.  And what else could a minority do?  Obviously, they could exploit whatever protections they have under the rules to whatever extent they thought it wise to do so...they could force full readings of bills, use up every second of debate time they are entitled to, object to everything that required unanimous consent and thereby forcing more time-consuming methods of operating.  However, all of those options could further be curtailed by a determined majority.  In reality, the only real protection the minority would have are the interests of majority party Senators to retain the influence of individual Senators, and public pressure.  That's true whether the majority party acts at the beginning of a Congress or if they choose to act, as Republicans threatened to act on judicial nominations when George W. Bush was president, in the middle of a Congress.  The only difference, if any, would be the political outcry.

And Klein is exactly correct: the most likely scenario is a compromise driven by the threat of a majority unilateral action.  So what's really called for now is some serious thinking by everyone about what kinds of compromise make the most sense in a world in which Senators still want individual influence, but also want rules that allow the Senate to function under current conditions that include strong partisanship and well-sorted parties.

Regular readers know my answers, but I don't think I've given them for a while:

1. Majority confirmation of executive branch nominees, but allowing holds to continue;
2. Retaining the filibuster/cloture for judicial nominees, but with a certain vote on cloture: no holds;
3. One filibuster-free bill a year, but with minimal protections against amendments: Superbill!
4. Some streamlining of other procedural roadblocks.

By the way, Tom Udall's father Stewart Udall was one of the Democrats who agitated for reform in the House after the 1958 election, and his uncle Mo Udall continued that fight through the reform era.


  1. It seems to me the Superbill could easily be abused by having legislators lump what under normal circumstances would be many bills into a single bill.

  2. That's a feature, not a bug. You could load up whatever you wanted into it. If your majority was big enough, or unified enough, you could get your whole agenda through, and that's fine with me. On the other hand, if you have 52 Senators and several controversial bills, well, you probably won't be able to pass them all together, and you'll have to make choices. That's fine with me, too. (And of course whatever you do has to survive the House, which might have somewhat different preferences).

    It's worth noting that the ability of the minority party to propose amendments and get them adopted with a simple minority is another real constraint.

    I'm willing to speculate that the availability of a Leadership Bill -- Superbill! -- might tend to push the minority party to be less likely to filibuster relatively noncontroversial bills. With the majority having the option of sticking something onto Superbill! and passing it, it might make more sense to let it come to the Senate floor under regular order and hope to amend it. But of course one of the hazards of any reform is that it's hard to game this stuff out in advance.

  3. Would you also be in favor a reduced number of votes needed for cloture?

  4. Backbencher,

    I don't think there's anything magical or special about 60 as the number, so I have no problem with changing it...but also no problem with it staying as is. One thing to remember is that we're very focused on 60 because the Dems happen to be around that number in this Congress, but that's pretty unusual.

    If I were advising Dems, I'd say to threaten changing the number for cloture, but trade it off for these other things.


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