By Joshua C. Huder
If the Senate were a friend, you’d say it was having an off-year. Or worse, you would tell it to see a doctor.
The bipartisan, compromise based customs and traditions that have defined the Senate for over two centuries are eroding before our eyes. The impacts of that shift will be felt well into next year, next Congress, and potentially decades to come. But while the myriad of unprecedented events in the Senate this year may be new to its history, they are not new to Congress. It’s just that they are the type of events that are common in the House, the majoritarian chamber of Congress. The drift toward a more majoritarian Senate is not new. However, the 2017 Senate represents not a drift but a leap in this direction.
There are two dimensions to majoritarian processes in congressional history. The first is procedural: the mechanisms used to pass a bill. The second are the norms associated with those processes, generally perceived as the “acceptable” guidelines for passing a bill into law. The two are related but distinct. For example, the House has been a majoritarian body since 1890. However, there has been a huge range of norms associated with its majoritarian process. Today, committee consideration is not seen a critical or even necessary. However, in the middle of the 20th century, skipping committees rarely happened. It was not impossible, it just (almost) never happened. The process has remains majoritarian, but the routines and norms of procedure have changed over time.
The Senate is unique because rules prevent the majoritarian processes we are accustomed to in the House. The filibuster is still fundamental to Senate deliberation. However, in recent Congresses, the Senate has tackled an increasingly large portion of its legislative workload through what Molly Reynolds calls, Exceptions to the Rule. These are processes, often written into law, that circumvent Senate Rule XXII, commonly but inaccurately referred to as the “filibuster rule,” which governs debate in the Senate. Using these expedited processes allows the Senate to operate as if it were a majoritarian body in a limited number of circumstances.
What’s striking is the degree these “exceptions to the rule,” have dictated most Senate debate in 2017. For example, the Senate has put the Congressional Review Act (CRA) to work, a non-filibusterable process used to eliminate executive branch rules. Of the 24 bills passed via roll-call vote in the First Session, 17 were non-filibusterable disapproval resolutions under the CRA. The Senate’s two major legislative pushes this year both were considered under budget reconciliation, a process that circumvents filibusters to pass bills with a straight majority. In short, what are historically known as exceptions became the norm in 2017. Old modes of deliberation and legislating gave way to overtly partisan procedures as routine.
Furthermore, just analyzing majoritarian Senate processes actually masks the truly unprecedented Senate procedural trend in 2017: leadership control of the process. The tax bill and Better Care Reconciliation Act (BCRA, aka Obamacare repeal) were products of a highly centralized process. Majority Leader Mitch McConnell, R-KY, led negotiations behind closed doors, out of committee, and determined the shape and language of the bills out of the public eye. Once he had something close to agreement among his slim majority, he dropped the bills and leveraged his procedural position to control debate. The level of control the leadership exhibited on both bills was astonishing, particularly in a body known for its equality. It was nothing short of a leadership power grab. And it’s the closest process we’ve seen to the House possibly ever.
In fact, the closest parallel to tax and BCRA process is found in the House. The Democratic majorities of the early 20th century acted in nearly identical fashion. They used caucus rules to bind their members to an agreed-upon plan of action. A two-thirds caucus vote bound the entire party in committee and on the floor, resulting in a legislative process in which the party members would negotiate an agreement among themselves in caucus. Committee and floor action became a perfunctory and choreographed execution of behind the scenes deals. The committees of jurisdiction would report the caucus bill, vote down all amendments and motions on straight party line votes, and pass the previously agreed upon version. The Rules Committee would report a rule agreed upon by the caucus, and the party would pass the bill. This process was derisively called the “King Caucus” by Republican opponents at the time.
The more concerning development in the Senate this year, however, was the breakdown of the routine norms structuring debate. Senate debate on reconciliation matters is constrained by an overlapping set of rules and laws. The Budget Control Act, the Byrd Rule, and others bind what can be considered in the reconciliation process. For example, policy that has no budgetary effect is prohibited. Policies that create deficits outside the budget window are prohibited. The Senate complied with the letter of these rules but tortured the character and nature of them. The majority’s casual indifference to those constraints is worrying.
For example, they pushed ahead on BCRA without cost or policy estimates from the Congressional Budget Office (CBO) or the Joint Committee of Taxation (JCT) (non-partisan scorekeeping agencies estimating the impact of legislation). The leadership pressured Republican senators to support the bill without guidance as to how many people would lose insurance, its cost, or other potential economic impacts. This free-wheeling, leadership-driven strategy pushed the process to the brink of ignoring legal constraints.
These tactics are common in the House. The House is also “bound” by those same budget laws. However, when it considers legislation it simply waives the laws’ applicability. The House, in essence, admits it is breaking the statutory constraints enacted in the 1974 Budget and Impoundment Control Act. That is its prerogative since the Constitution outlines that “Each House may determine the Rules of its Proceedings” (Article I, Section 5, Clause 2), but it also shows a willful disregard for previously written law. House process is not constrained by anything but the whims of the majority, which casts aside laws, rules, and precedents when politically convenient. While understandable as strategy, it is not great process.
The Senate has yet to completely follow the House. However, this year’s processes on the tax and healthcare measures came closer to that line than ever before. It relied heavily on the exceptions to the bipartisan debate that has characterized the Senate for more than two centuries. It pushed the limits of its rules to near breaking points. And this in addition to executive and judicial confirmations – already a majoritarian process in the Senate – where the Republican majority extended Reid’s “nuclear option” to Supreme Court nominees and presided over the most partisan confirmation process in history.
What happened in the Senate in 2017 is unprecedented in its history. And that is because it is closer to the House than it has been in more than 200 years of lawmaking. The once sacred protection of parliamentary rights in the Senate is eroding. While the body is holding onto the last bastion of bipartisan compromise on legislation, this tradition is used less often while abuses of the exceptions to Senate Rule XXII become more commonplace. At this pace, it may be that the Upper Chamber is simply a smaller copy of the Lower Chamber sooner than we think.
Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.