By James Wallner
The Senate has changed considerably in recent years. So too has our understanding of how its members make decisions.
Traditionally, the leading scholarship on the Senate has taken as its starting point the fact that its members possess considerable parliamentary rights under the institution’s Standing Rules. This was important because senators used those rights to obstruct legislation they opposed. To the extent that such treatments acknowledged political parties, they typically focused on the negative consequences of rising partisanship, which made it harder for Senate majorities to overcome obstruction by an increasingly unified minority party.
Yet an apparent decline in member autonomy and corresponding increase in party cohesion over the last two decades prompted scholars to reexamine how they thought about the Senate. The result of their efforts has been a reorientation in our understanding of the Senate. Today, the starting point for most scholarly inquiries is not so much the efforts of individual senators to achieve their goals in the institution as the collective behavior of the majority and minority parties more generally. The treatments that first adopted this perspective sought to adapt earlier work on party effects in the House of Representatives to explain developments in the Senate.
But unlike in the House, minorities in the Senate still have the ability to influence policy outcomes. The most widely known example of this is the filibuster, which permits senators to block the majority from passing legislation. The majority can overcome such obstruction by invoking cloture under Rule XXII. But doing so requires a three-fifths majority (typically 60) to end debate and proceed to an up or down vote on a bill (typically 51). As such, the minority retains significant leverage in the legislative process so long as it is able to secure the votes needed to prevent the majority from invoking cloture (typically 41).
Senate majorities may curtail the minority’s ability to filibuster with a reform-by-ruling approach (i.e. the so-called nuclear option) to unilaterally create a new precedent that is inconsistent with, but nevertheless supersedes Rule XXII. However, they have not often done so.
Admittedly, there have been exceptions to this reluctance in recent years. In 2013, Democrats used the nuclear option to limit the minority’s ability to obstruct most nominations. And Republicans did so earlier this year to preclude filibusters of Supreme Court nominees.
Notwithstanding this, neither party has elected to go further by eliminating the legislative filibuster. While there are several reasons for this, one of the most often overlooked explanations is that the Senate can exempt specific legislation from being filibustered in the future without using the nuclear option or going through the cumbersome process of changing the rules via the process stipulated in Rule XXII. This reduces the demand for eliminating the legislative filibuster by offering determined majorities an alternative way to enact policy.
In Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate, Molly E. Reynolds considers these special procedures, which she terms majoritarian exceptions. A fellow in Governance Studies at the Brookings Institution, Reynolds defines a majoritarian exception as “a provision, 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.”
Reynolds groups majoritarian exceptions into two categories: delegation exceptions and executive branch oversight exceptions.
With delegation exceptions, majorities empower designated actors to craft legislation addressing specific policy problems while simultaneously limiting the minority’s ability to obstruct the measure when it is eventually considered by the full Senate. The reconciliation process is an especially salient example of a delegation exception given recent Republican efforts to repeal and replace Obamacare and reform the tax code using the special process. In reconciliation, committees are authorized to craft legislation meeting specified budgetary targets. Floor debate on reconciliation bills is limited to 20 hours and the amendments senators are permitted to offer are restricted. These exceptions to the Senate’s Standing Rules were created when Congress passed the Congressional Budget and Impoundment Control Act of 1974 and the Omnibus Budget Reconciliation Act of 1990.
In contrast, oversight exceptions create a special fast-track process to approve or disapprove a presidential act after it has already occurred. These special procedures usually preclude amendments and limit overall debate time on the underlying legislation. Examples of oversight exceptions include legislation periodically passed by Congress giving the president authority to negotiate trade agreements and to expedite their consideration in the Senate (e.g., the 2015 Bipartisan Congressional Trade Priorities and Accountability Act). The elaborate disapproval process Congress utilized to raise the debt ceiling on a number of occasions during the Obama administration offers another example of an oversight exception.
In considering majoritarian exceptions as a distinct class of procedures that share certain identifiable features, Exceptions to the Rule makes an important contribution to our understanding of the relationship between partisanship and parliamentary procedure in the Senate. Reynolds highlights the utility of majoritarian exceptions to Senate majorities as well as their impact on policy outcomes, and provides an analysis that enables us to predict when Senate majorities will be more likely to propose such exceptions in the future.
But we should be careful not to overstate the value of majoritarian exceptions to Senate majorities more generally. The special procedures do not provide them with a reliable way to enact their agenda over the minority’s objections on a routine basis. This is because they must first be authorized by law and the legislation containing such provisions can be filibustered.
The repeated use of majoritarian exceptions, it is worth adding, may have important consequences for our politics more generally. For example, Congress cedes its authority to make law to the executive branch when it uses oversight objections. Doing so may be necessary to ensure action on an important public policy problem. But it also gives unilateral presidential action the imprimatur of legitimacy at a time when many observers are calling for Congress to reassert its authority.
And both oversight and delegation exceptions may exacerbate a growing accountability problem in our politics. It is harder for voters to assign responsibility to legislators for the policy outcomes produced via such processes.
More broadly, the restrictive rules Congress places on such processes distorts the nature of Senate decision-making in subtle, yet nevertheless important, ways. The limits on debate and amendments upends the deliberative process in the institution and restricts the ability of the rank-and-file senators to participate in it. In the case of reconciliation, fitting legislative proposals into the four corners of what is permitted by the special procedure supplants a more inclusive and adversarial process geared towards adjudicating the claims of senators and their constituents. Not engaging in contentious debates in this way has the potential to make the policies enacted via majoritarian exceptions less stable over the long-term as opponents refuse to accept their legitimacy and instead wait for the chance to reverse them using the same process in the future.
The irony of the Senate’s increased use of majoritarian exceptions in recent years is that it has exposed the limits in the regnant approach to thinking about the institution. The spectacular failure of Republicans to repeal and replace Obamacare earlier this year and their ongoing struggle to reform the tax code using the reconciliation process suggest that the parties are not as unified as previously thought. If this is indeed the case, our identification of the filibuster as thwarting majority action and thus perpetuating gridlock and dysfunction may be incorrect.
Regardless of such concerns, Exceptions to the Rule should be required reading for anyone concerned about the state of the Senate today. Reynolds’ in-depth analysis of majoritarian exceptions offers valuable insight into a subset of parliamentary procedures that will be sure to dominate Senate decision-making for years to come.
James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.