Friday, December 28, 2012

The Bipartisan Senate Reform Counteroffer

Eight Senators, four from each party, have now floated a Senate reform plan of their own. I blogged about this earlier today before we had seen the substance, but now that I have, here's an update of what I guess is going to be called the McCain-Levin proposal.

I think we need to break it down for two sets of situations. One is for majorities of 60 and up; the other is for any simple majority which doesn't reach 60 votes.

For the latter, the reform basically does nothing. Really: nothing. So as Congressional scholar Steven Smith tweeted, the "60-Vote Senate will remain alive and well." However: in my view, the talking filibuster proposed by Merkley and Udall would also leave the 60 vote Senate intact, so I don't consider losing it a big deal at all.

For the former, however, the bipartisan group is offering something that should make the Senate run smoother -- easier to go to conference, easier to get a bill to the floor, and on nominations, easier confirmation. Again, however, that's for 60+ vote majorities. In particular, for executive branch nominations other than cabinet posts, a handful of Senators could only delay things for a few hours, instead of the current possibility that they can make one non-controversial nominee last for a week.

Indeed, if those reforms work as they would seem to, that would help majority parties in general, because it would free up Senate floor time overall. Remember, Senate time is limited; it's possible that something with plenty of votes might not reach the floor because other items, higher priority items, eat up lots of time.

The proposal also guarantees the minority party at least two amendments on any bill which is brought to the floor under a new procedure that would avoid a filibuster on a motion to proceed.

Other points:

* Ian Millhiser at Think Progress makes the point that this proposal works better for party leaders than for back benchers. That's especially true if those leaders would actually carry out suggested procedural (non-rules) changes, which would force Senators to park themselves on the Senate floor to make their own objections. I'm very skeptical that last part would happen, but I suppose it's true.

* Another part of the proposed reform is to move more executive branch nominations straight to the Senate calendar, rather than having them go through committee. I'm ambivalent about this one...I really like the idea of Senate committees working through nominations, but only if they can do it efficiently and with a minimum of paperwork. I fear that doing it this way reduces the influence of the Senate; the problem is that they can't seem to find a way to do it responsibly, so this might be better than nothing.

* Ezra Klein considers the possibility that the reform group could pass through regular order by winning 2/3 of the vote to be a problem. I disagree! But then again, I want reform that would retain individual Senators influence and a fair amount of influence for minority parties; I don't want to see a Senate run the way the House is run. I don't think it matters a lot, but for the those goals I think it's better to see a compromise made after the majority threatens to impose reform.

Again, the most important caveat: I've read through the proposal a couple of times, and I've read what Steve Smith and Sarah Binder have tweeted, but I'm very much open to the possibility that I'm misunderstanding the effects of one or more of the provisions (frankly, I've never quite mastered the whole amendments tree thing; the basic idea, sure, but well enough to understand how proposed changes would affect things? Maybe). Of course, it's also very possible that we outsiders could understand the likely effects of change better than the insiders who propose them. Rules are funny like that.

Overall: in my view, if looked at as a first offer open to further negotiations, this is a constructive proposal. I especially like that it deals separately with bills, executive branch nominations, and judicial nominations, something I've said is a requirement for any truly serious reform effort. Steven Smith thinks it's too favorable to the Republican minority, but I do think it would significantly reduce obstruction just for the sake of obstruction, and that helps the majority.

On the other hand, it clearly would do nothing for majorities which fall short of 60...technically, I suppose, it would allow debate on bills which now can't even get to the floor, but as I've said before I don't actually consider that a big deal. But again, since in my view Merkley-Udall doesn't do anything for majorities short of 60 either, it's a wash on that point.

All of which is to say that I'm really not thrilled with the direction all of this is going. What's breaking the Senate, and what needs to be revoked in order to end the pressure for reform, is the across-the-board 60 vote Senate. Simple majorities for executive branch nominations; some sort of expanded, more rational version of reconciliation to allow at least some top priorities of the majority to get through. Without that, I really don't think much will change, and that means the pressure for radical reforms won't go away.


  1. You know what, man? I still haven't seen a convincing detailed filibuster reform proposal from you that does what you think a good reform proposal should do. Which is disappointing, because all I read from you is that the Senate shouldn't become the House, alongside significant criticisms of every filibuster "reform" that would keep non-majoritarian aspects of the Senate. My conclusion is that maybe the Senate really just should operate like the House. Its members have lower re-election pressures, statewide electorates, and a more intimate chamber. By definition, it won't be the House.

    1. To consider the big picture, I don't see why a political system with so many veto points already (two chambers, committees in both chambers, Presidential vetoes, judicial review) needs more. As far as I can see, America is more in danger of not passing important legislation and getting hit by climate change or rising health care costs than passing bad legislation and privatizing Social Security or something. This is a big general reason to want the Senate to be less obstructionist and more Houselike.

    2. (Really the first sentence should be: "I don't see why a political system needs so many veto points.")

  2. I have to agree with Anonymous. Your Superbill idea does what you want (let the majority pass priorities, but leave individuals a lot of influence) but it leaves a lot of room for the Senate to stay dysfunctional. I would like Senate rules to focus on a few priorities you haven't mentioned:

    1) No limit on quantity of bills passable: This is a big, complicated country and there are a million things Congress ought to address but never does for lack of time (including time to obtain sufficient knowledge). We should not be compounding that problem with extra delays. The Senate should move efficiently through it's business and consider as many bills as need considering.

    2) An emphasis--or at least an option--on discrete, single-topic bills: Senators should try to keep their lawmaking organized and modular, with separate topics covered in separate bills. If lumping things into omnibuses is the only way to get the votes then that's understandable, but Senate rules should push in the opposite direction. Attempts to do comprehensive annual budgets go against this, as does Superbill.

    3) If (a majority of) the Senate strongly feels they need to act, they should be able to: When a majority deems a bill or bills to be urgent, or feels an issue needs to be decided one way or another (rather than defaulting to doing nothing), somehow they need to be able to force the question. So at the end of the day there needs to be some way to invoke a majority vote on any topic.

    I think 1) and 3) are more important than preserving individual influence. I don't know of a reform plan that could keep 1) and 3) while giving strong power to strong minority preferences. In absence of such a plan I am inclined to support simple majority rule. I think the absolute overriding issue is that the Senate needs to be ready to govern and make decisions whenever necessary, no matter what.

  3. You lost me at "McCain." It's pretty much axiomatic that anything he gets involved with is crap especially since November 2008.

    I still like my idea of giving the minority leader 2 or 3 chances to filibuster per 2 year session sort of like the flags for video review in the NFL. This would force the minority to be highly selective in what they filibuster rather than indiscriminately requiring 60 votes for everything. The fact that the majority could just resubmit a successfully filibustered bill in a different form under this plan is a feature not a bug. The minority is supposed to lose in a majority rules legislature and almost always did prior to 1993. This would give them to chance to make a strong statement on the things they most passionately oppose while preventing them from merely keeping the Senate from functioning on routine business and appointments.

    I would however keep the 60 vote requirement for Supreme Court judges until the Constitution is amended to limit their terms in some fashion.

  4. ANYTHING that involves McCain is suspect from the git-go.

  5. I'm going to pile on and me-too the critiques made above. Your case for running the Senate differently from the House seems dubious. The only way to ensure that the majority rules in the Senate is to return to 51-vote majorities as a matter of routine.

    The Senate has traditionally functioned in a more deliberative way than the House because of its culture, not its rules. The rules embodied that culture. But the Senate's culture has grown more adversarial - since the retirement of Olympia Snowe (says Nate Silver), the most conservative Senate Democrat is more liberal than any Senate Republican. The filibuster embodies the Senate's increasingly adversarial culture and simply serves as a tool for partisan obstruction.

    I suspect your objection to this argument would start with the word "simply." Sen. Carl Levin is no fool, after all, and he may view the filibuster as a tool of both obstruction and deliberation. Abolish it to reduce obstruction and you lose the forcing mechanism to encourage deliberation. But from my outside perspective, this seems like magical thinking. The Senate was a deliberative body before the filibuster entered regular use. The existence of the filibuster seems to me irrelevant to whether the Senate continues to be a deliberative body.


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