Thursday, August 5, 2010

Dodd, and Senate Reform

Yesterday, Chris Dodd -- who has served in the Senate since 1981, and before that in the House since 1975, and whose father served in the Senate from 1959-1971, and who is completing one of the all-time great final years in office (in terms of quantity and importance of accomplishments), threw cold water on Senate reform:
"I'm so vehemently opposed to the ideas to fundamentally change the rules of the Senate," retiring Sen. Chris Dodd (D-CT) told reporters this afternoon. "Those ideas are normally being promoted by people who haven't been here in the minority."  "I made a case last night to about 10 freshman senators: You want to turn this into a unicameral body? What's the point of having a Senate?" Dodd said. "If the vote margins are the same as in the House, you might as well close the doors."
I think the tendency for a lot of people -- certainly a lot of liberals -- will be to just dismiss what Dodd and other senior Senators are saying.  I disagree.  I think it's useful to remind people that the Senate is not the House, and it's okay for it to be governed differently than the House is governed.  While Dodd doesn't specify in these comments what it is that makes the Senate different, I think generally the notion  is sound and consistent with the composition of the Senate that the Senate should empower both relatively narrow interests and large minorities at the expense of simple party majorities. 

(As always, I'll mention the caveat: the extreme malapportionment involved in the structure of the Senate has no legitimate justification at all, but fortunately doesn't seem to be all that important in practice, especially not in partisan terms, and anyway there's nothing that can be done about it).

The question is: if you're Chris Dodd or any other senior Senator who wants to preserve the things that make the Senate different, what should you tell junior Senators?  It seems to me that the last thing you should tell them is to oppose reform.  The truth is simple: the Senate that Dodd's father entered in 1959 is gone.  The Senate that he entered in 1981 is gone, too.  The Senate is going to be, for the foreseeable future, a much more partisan place than it was in 1959 or even 1981.  The rules and norms that worked then stopped working, and new norms have developed.  Soon, the rules are going to change.  The next time there's an extended period of unified government -- that is, same-party control of the House, Senate, and White House for more than four years -- Senate rules will almost certainly change.  Look how quickly Senate reform has moved from a complete non-issue for liberals to one of their most central demands; remember that the same thing happened once Republicans secured unified government in 2003.

So change is on its way.  Those who want that change to reflect the strengths of the Senate shouldn't be resisting reform; they should be leading the way in trying to find rules that allow the Senate to function in a partisan age without turning it into a majority party dictatorship (like some other chambers of Congress one could mention).  Indeed, while many liberal pundits, bloggers, and activists pretty much would like to see simply majority party rule in the Senate (just as many conservatives did five years ago -- and, yes, there are plenty of people on both sides who are in fact principled believers in majoritarianism), what strikes me is how many reform proposals have tried to find a middle ground.  That's true for the Bennet proposal and the Harkin plan, as well as ideas from Scott Lilly, Jonathan Krasno and Gregory Robinson, and Ruth Marcus.  In other words, it seems to me that if you want the Senate to retain what I, and presumably Chris Dodd, see as its strengths, what you really should do is to work with the people who want reform to do that.  Because otherwise, reform is going to come anyway, and it may well do what Dodd fears -- turn the Senate into a second House of Representatives.

Which is why I've been pushing my suggested reforms, which owe a debt to all of the proposals I mentioned above, and to Ezra Klein, whose musings on reconciliation inspired my Superbill! proposal.  What I'd like to see:

1. On executive branch nominations, retain the ability of Senators to place holds, but eliminate the filibuster (or at least lower the cloture requirement to a simple majority).

2. On judicial nominations, eliminate holds: any nomination that clears committee is entitled to a vote (including, if necessary, a cloture vote) on the Senate floor within some relatively short timeframe.  Of course, the majority would not have to move to the nomination if there were enough votes to block it, but small minorities or single Senators should not be able to prevent, or even slow, judicial nominations from moving forward.

3. On legislation: replace reconciliation with a new Leader's Bill (or, as I also like to call it, Superbill!): the majority party gets one bill a year that needs only a simple majority to pass.  Like reconciliation, it would be as large, with as many unrelated topics, as the majority can sustain; unlike reconciliation, the topics would not need to be limited by complex budget rules.  It would also be amendable on the Senate floor by simple majorities (although it probably should be protected from non-germane amendments). Beyond that, the main limits on the Leader's Bill would be the ability to command simple majorities (as well, of course, as the need to move the bill through the House and to avoid a veto).

4.  I'm ambivalent about changing the number required for cloture for judicial nominations and regular legislation, and probably wouldn't mess with it right now, although I like the idea of requiring an affirmative vote (of 41) to block cloture, rather than the current requirement of 60 to invoke it.  I also like the idea of restricting or eliminating filibusters on appropriations bills, although implementing that would require strict adherence to the principle of not legislating on appropriations bills, which might be tricky to do in practice. And I think ideas about streamlining cloture-related procedures (such as eliminating the chance to filibuster on the motion to proceed to a bill, reducing the time it takes a cloture petition to ripen, and reducing post-cloture debate time) are all worth exploring.

Senate change isn't just coming; Senate change is a constant.  Senators can either manage that change by creating new rules and norms that allow the strengths of the Senate to thrive, or they can stick to the letter of the rules while the actual practices of the Senate change around them -- and in doing so, risk either disfunction that reduces the role of the Senate in the political system, or a majoritarian backlash that ignores those strengths of the Senate.  If Chris Dodd and other senior Senators really care about the institution, they would study all of these reform proposals and propose that the best ones be adopted.

7 comments:

  1. 1. On executive branch nominations, retain the ability of Senators to place holds, but eliminate the filibuster (or at least lower the cloture requirement to a simple majority).

    If a hold is nothing more than a threat to filibuster (and thus suck up 30+ hours of floor time on a single nomination), how can the threat of a hold still work if there is no filibuster to back it up?

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  2. I think you are waxing a little too poetic about Dodd's year as he defanged so much of financial reform. Makes me think he is making himself a nice comfy bed to lie in that has the words "Hedge Fund Executive" on the headboard...

    Of course, it could have just been a comment on his importance not on the quality of his work. If so, then I get it. The scales really fell from my eyes in the spring as it became clear that perpetuating the flow of slop into the trough from which Washington eats is the only bipartisan issue.

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  3. Jonathan, thank-you for another in your series of thoughtful and well-explained essays on the Senate, its rules and its norms.

    The second time I read this post, I read it as if I were a Senator looking to obstruct (within the rules of course) the majority. I'd be interested in your responses.

    First, like Kal, if a "Senator Delay" can place a hold on executive branch nominations, how does the nomination move forward despite the hold?

    Second, in a session like the current one, under the Superbill! rule, what's to stop the majority from taking the 200+ bills that have passed the House, combining them into this session's Superbill! and passing it through both Houses? Indeed, once Superbill! is an established rule I can envision a majority writing bills that command 50+ votes (health care with public option, cap-and-trade, comprehensive immigration reform, additional stimulus/jobs legislation), losing cloture votes on each bill, then near the end of the session---perhaps even in a lame duck session---passing Superbill!

    Third, your final point seems to lean towards amending cloture so that it requires an affirmative 41 votes in a streamlined process, and perhaps only on non-appropriations bills. That's certainly a proposal worthy of consideration. It does not, however, wrestle with the origins of the filibuster and whether the filibuster is worth retaining.

    If I have the history right, the filibuster arose somewhat accidentally out of rules reforms in 1806 on the recommendation of Aaron Burr in his last address to Congress (after his duel with Andrew Hamilton). (An aside---hardly an illustrious origin.)

    As a practical political matter, there's a good case to be made for retaining, but weakening, the filibuster. As an intellectual matter, I think there's not much of a case for retaining the filibuster---but I look forward to more of your thoughts on the matter in the coming months.

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  4. The idea that majority voting would make the Senate a copy of the House and therefore a de facto unicameral legislature is laughable and ridiculous. If that is the best argument he can find for the status quo, he has no argument at all.

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  5. @Anonymous:

    I'm guessing that the pressure against having the entire legislative agenda passed in one bill would be similar to the pressure that used to exist against Congress passing all the appropriations measures in one omnibus package: The fear that Ronald Reagan will stand before the nation, pat the 14 pound bill, and say that it was impossible for members to even know what was in the bill, as he did in the 1988 SOTU.

    And you'd have to not only have a coalition of 50 Senators support each part, but you'd have to have 50 Senators willing to support the entire thing, even portions of it that they disagree with. The hardest part about passing large bills is that there is always something for each Senator to hate.

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  6. @Kal,

    I agree, those are reasons for Senators not to support an omnibus Superbill!

    But two points:

    1) Despite the potential for embarassment (e.g., 1988), Congresses do still pass omnibus appropriations bills (and/or appropriations bills for several departments at once).

    2) Look at the Democrats in the current Senate (granted, it's rare for one party to have such a supermajority). Assume Ben Nelson, Blanche Lincoln, Mary Landrieu, Joe Lieberman and two random Senators would vote against a hypothetical 2010 Superbill! that included significant additional stimulus, comprehensive immigration reform, major energy reform (with a weakened cap-and-trade), and several smaller bills. I think it's entirely likely that the remaining 53 members of the Democratic caucus would vote for the Superbill! and Nancy Pelosi could round up 218 votes in the House.

    Or, since I'm speaking hypothetically, the threat of Superbill! would persuade 3-8 Republicans to cut deals on the separate bills to avoid facing (and losing) a Superbill! vote.

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  7. Interesting comments. I'll just respond to the Superbill! discussion. Yup, the majority could put everything into the one bill. That's by design. My assumption is that if the majority party has close to 60 seats and are generally unified, they would basically be able to pass most of their agenda, either using the Leader's Bill or, perhaps, threatening to stick things into Superbill! and thereby getting the minority party to try to cut deals, or at least not filibuster. With a slim majority, Superbill! would be a lot less useful. That's a good thing, right? The larger, and the more unified and intense the majority is on any particular (small) bill, the better the chance they will include it in the Leader's Bill and that it will pass.

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