By John Rackey
In a recent article, Ezra Klein declared the Senate broken. The culprits, according to Klein, are the increased use of the filibuster and the reconciliation process. To be sure, the characterizations of the quality of legislation produced by the reconciliation process are correct in that the “legislation is often unfinished, poorly written, or booby-trapped.” The filibuster and budget reconciliation are simply tools. You cannot blame tools for how they are used, and changing them will not solve nearly as many problems as some suggest.
Increased Use of the Filibuster
The frequency of filibuster use has increased over time because the physical and political costs associated with executing a filibuster have continually been lowered, making it easier to use. In 1975 the Senate introduced double-tracking, a process by which a bill being filibustered could be set aside on one track, while other bills could be moved through the Senate on another track. This effectively ended the practice of talking filibusters, filibusters where senators must hold the floor without stopping. Some Senate scholars do not place as much emphasis on the formalization of double-tracking in 1975 because it was an informal practice in place for decades. However, the 1975 switch institutionalized the practice and signaled a significant shift in the use of obstructive tactics. Without having to hold the floor, the immense physical burden associated with grinding the Senate to a halt is no longer a factor.
The political costs of filibustering have also been largely muted. In U.S. Senators and Their World (University of North Carolina Press, 1960), Donald Matthews lays out a set of informal norms that govern behavior within the Senate. Norms that historically limited the number of filibusters, i.e. made senators hesitant to use the tool, were the norms of courtesy and reciprocity. Courtesy is both a norm and structured rule. It ensures senators address the presiding officer instead of each other on the floor and forbids personal attacks on colleagues. Reciprocity implies vote trading and logrolling in the, “you scratch my back, I’ll scratch yours,” method of lawmaking. It also applies to a senator’s decision to use her formal powers, such as the ability to filibuster, sparingly to protect against the same tactics being used against her in the future.
Courtesy has all but died in the modern Senate, as evidenced by Majority Leader Mitch McConnell’s formal reprimand of Sen. Elizabeth Warren (D-MA) during the debate over the confirmation of Jeff Sessions as Attorney General. In this case, both what Warren was saying and McConnell’s silencing of Warren exemplify the denigration of courtesy. The double-edged sword of reciprocity has allowed the side of the blade responsible for deal making and vote trading to dull, and the side responsible for vengeful obstruction to flourish. A Senate where the single bladed sword of reciprocity reigns is one that is marked by gridlock.
The frequency of the filibuster has undoubtedly increased. Before we characterize the nature of the filibuster first we must define what a filibuster is and is not. Many Senate observers equate filibusters to cloture votes, the procedural motion necessary to end debate. As Lauren Bell notes in her book, Filibustering in the U.S. Senate (Cambria Press, 2011), cloture votes are “at best only a poor proxy for identifying filibusters, as some filibusters are subject to multiple cloture attempts, whereas other filibustered measures are never subjected to even a single attempt.” Using cloture votes to count filibusters is even more problematic in the post-nuclear Senate where cloture motions have become a routine tool of the majority leader as they call up legislation for debate.
According to Bell, a filibuster is a purposeful act whose intent is to delay or prevent the consideration of a bill. Filibusters are deliberative events carried out by individuals, so for a filibuster to be counted an individual must be able to be identified. For example, from 2013 to 2014 there were 218 cloture votes related to filibusters. However, there were only 14 filibusters associated with those cloture votes. Most of those votes were preemptive votes to head off potential filibusters. So, while the frequency of filibusters has increased, its use is not quite as prolific as one might expect.
Fixing the Senate
Most observers can agree that the Senate is not living up to its moniker as “the greatest deliberative body in the world.” So, how do we fix it? Klein suggests a bipartisan group of senators could make recommendations to be implemented six years later. The reason for delaying implementation is to encourage both parties to work on solutions as if they were in the majority and minority at the time of implementation, since party control of the Senate six years in the future is unknown. There are several problems with that proposal, however.
First, unlike legislation, rules cannot be written to have a “sunrise clause” where they have a specific start date. Any deal on rules written by a bipartisan group of senators would have to wait to be implemented until six years later. It’s highly unlikely that any such deal would be upheld. It seems equally unlikely that the president, House, or public could pressure the Senate into keeping its commitment. History is littered with examples of outside pressure on the Senate to change its rules concerning debate, most of which failed. There are “majority exceptions” as Brookings fellow Molly Reynolds calls them in, Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate (Brookings Institution Press, 2017), Majority exceptions are “provision[s], included in statutory law, that exempts some future piece of legislation from a filibuster on the floor of the Senate by limiting debate on that measure.” But, majority exceptions would need to be negotiated and approved for each piece of legislation, something that is unlikely to happen.
Second, changing the rules is unnecessary. To improve the functioning of the Senate, senators need only enforce existing rules. The practice of double-tracking allowed senators to filibuster a bill without having to hold the floor. Forcing senators to hold the floor increases the political considerations to filibuster by forcing senators to justify why they are bringing the business of the Senate to a grinding halt. Additionally, enforcing Rule XIX would also limit the use of filibusters. Section 1 of Rule XIX states that “no Senator shall speak more than twice upon any one question in debate on the same legislative day.” Rule XIX, as James Wallner has pointed out, is a means, albeit imperfect, for limiting debate on bills where cloture cannot be invoked.
In sum, the rules of the Senate are but tools of the men and women who occupy the chamber. Changing the rules to “fix” the Senate wouldn’t fix much of anything so long as incentives remain as they are. Senators inevitably find ways of exploiting the rule changes, and present mores do little to discourage exceedingly obstructionist behavior. Current rules, if embraced and utilized, can effectively limit the number of filibusters. By the same token a return to regular order for creating legislation would correct the problems associated with reconciliation.
John Rackey is a Ph.D student in political science at the University of Oklahoma. You can find him on Twitter @JDRackey.