Let's fix the Senate

 

Red vote, blue vote, sometimes no vote

The United States Senate, a grand institution

From Article I of our ole’ Constitution,

Is one hundred people, elected so duly.

Who would have thought they could be so unruly?

 

Two parties at once, in the very same room,

Discussing new laws that are still in the womb.

But among Reps and Dems, agreements are rare.

That means that our country goes almost nowhere.

 

“Fear not,” so they say, “long debate’s a tradition.”

But when nothing gets done, looks more like sedition.

Debate all you want, and take careful notes,

But remember we sent you up there to vote.

 

What’s wrong with the rules when they always get stuck?

Why can’t they solve problems ‘stead of passing the buck?

The minority’s outraged; the majority’s flustered.

Is it now time to cancel that darn fil-ee-buster?

Democracy is at a crossroads

Everyone is blaming the filibuster for gridlock in the Senate.  It’s not the only problem.  There are other rules in the Senate that enable the minority to obstruct progress and the majority to run roughshod over the minority.  Here we propose fixes to the whole mess that could move Our Imperfect Union forward.

We are witnessing history in 2021.  We’ve already seen the first attempted takeover of the U.S. Capitol since the War of 1812.  That rebellion was put down within hours and the perpetrators will face justice.  Our system of elections survived the attempted theft of the presidency, despite support from several Senators, Representatives, and the President himself.  This event laid bare the degree to which some radical politicians will stop at nothing to gain and hold onto power.  We dodged a bullet.

What’s next?  Congress will consider multiple bills to fix our system.  Those votes will make history, especially if the Senate has to change its rules to pass them.  In particular, keep an eye on:

• HR1 – For The People Act – an omnibus bill addressing voting rights, redistricting, election security, campaign finance, and government ethics. First passed the House in 2019, died in the Senate graveyard.  Passed House again in 2021.
• HR4/S.4263 – John Lewis Voting Rights Advancement Act – updates the Voting Rights Act and restores the pre-clearance rule gutted by Shelby v. Holder in 2013.  Passed the House in December 2019.  Swept under the Senate’s rug.
  

These bills and others address long-standing, deep-rooted flaws in our democratic republic, many of which are key parts of Our Imperfect Union’s agenda for change. 

We’ve arrived at a moment of truth:  Can the Senate be reformed so that our democratic republic can be saved?

It’s Aaron Burr’s fault

Let’s address the filibuster first.  How did we get here?  In 1805, fresh from being indicted for the murder of Alexander Hamilton, Vice President Aaron Burr chided the Senate, as its presiding officer, over its messy rulebook.  So in 1806, the Senate changed its rules but it made a mistake.  It forgot to provide a rule for stopping debate and voting on the matter at hand.  Seriously.  Lengthy debate is a tradition born by accident.

In 1917, the Senate owned up to the mistake and added a rule, cloture, allowing 2/3s of the Senators present in the chamber to cut off debate.  Notably, to sustain a filibuster during this time Senators actually had to stand up and speak, in the presence of a quorum, to keep debate going.  Filibusters were hard to sustain and were few and far between.  Some of the most famous filibusters were against civil rights legislation in 1957 and the 1960s.  In addition, once a filibuster started, the Senate could not move on to any other matter.  Filibusters became highly public spectacles, reserved for only the most serious and divisive legislation.

In 1970, the Senate decided it had had enough of this legislative constipation.  It adopted a two-track system that allowed a bill threatened by filibuster to be set aside temporarily while others were considered.  And in 1975 it changed cloture so that only 60 Senators were required to cut off debate.  How did this work out?  As the chart below shows, it has caused an explosion in cloture votes.  Any Senator can now derail a bill simply by threatening a filibuster, with no consequences. 

 

 

We have arrived at today’s system requiring 60 votes to accomplish anything except renaming the occasional post office and certain bills exclusively dealing with budget, taxes, and spending.  The Republicans passed the 2017 Tax Cut and Jobs Act, and the Democrats passed the American Rescue Plan Act of 2021 using the budget reconciliation process. 

What else is wrong?  How do we fix it?

The filibuster is just one way the minority can gum up the works.  But what about the majority?  As we saw in The Marvelous Mr. McConnell, the rules of the Senate grant the majority leader, who isn’t even a constitutional officer, outsized power to run roughshod over the government.  Democrats and Republicans alike have abused this power.  We need to stop all the obstruction and games.  Here’s a package of fixes that should do the trick.

Problem	Causes	Solutions
Senate obstructs or ignores presidential appointments	Minority party threatens filibuster, or majority leader refuses to consider appointment (e.g. Merrick Garland)	Require up-or-down vote on all appointments within 90 days.  If no vote is held, consent is granted automatically.  This limits debate and forces the Senate to do its job.  Any attempt to filibuster will be self-defeating.
Minority party cannot advance agenda in Senate, limiting it to obstruction of majority agenda	Rules give majority leader complete power over Senate agenda	Allow any group of 35 Senators to petition the chair to bring something to the floor for debate.  Require that debate begin within a fixed time period, say 10 in-session days, or require that every 5th bill considered be taken from the petition calendar.
Senate ignores bills passed by House (and vice-versa).  When chambers are divided, gridlock ensues.	No cross-chamber rules. Majority leader controls agenda.	New Reciprocity Rule:  Any bill passed by one chamber must be voted on by the other chamber within fixed time period, say 30 days.  By requiring a vote, such a bill cannot be filibustered indefinitely.
Legislation is sidetracked by threatening a filibuster without any penalty on the minority party	1) Two-track system makes it easy to sidetrack bills, and debate is effectively squashed.  2) Filibuster no longer requires actual speaking. 3) Burden to stop filibuster is on the majority instead of requiring minority to sustain the debate.	Reform debate rules surrounding the filibuster: 1) Eliminate the two-track system.  Bills must be dealt with as they arise, subject to above 3 provisions. 2) Require that a party wishing to hold the floor actually speak continuously.  3) Instead of the 60-vote cloture threshold, require 41 votes to continue debate.  This requires at least 41 senators from the minority party to be present at all times during a filibuster, lest the majority leader call for a vote. (Credit to Al Franken for this brilliant idea.)

 

The first 3 changes are designed to reduce the chances to filibuster by requiring votes and giving the minority a voice.   The changes around the filibuster itself put the burden on the minority party to maintain a quorum of at least 41 senators at all times.  Filibusters would again become public spectacles, and thus only used for the most serious matters for which the minority party is willing to literally camp out on the Senate floor.  Most matters would be resolved through compromise before they reached that point.

What could go wrong?  Consider these scenarios.

• Suppose the Senate majority wishes to obstruct all appointments from a president of the opposite party.  Senate would be forced to vote down the presidential appointments.  That is their prerogative under the Constitution, but then every Senator is on record as having so voted, which allows voters to hold them accountable for obstruction on Election Day.
  
• Suppose the minority party in the Senate introduces flood of nonsense legislation and petitions for votes.  They won’t able to completely gum up the works because the majority will still control most of the agenda.  The majority can quickly vote down nonsense bills.  The minority won’t stage lengthy debates over these, because they will be on record for sponsoring and speaking out for them. 

At the end of the day, the Senate has to operate as a bipartisan institution that debates and achieves compromise.  Neither party can be allowed to hold the country hostage. 

What can I do now?

The debate over the filibuster will be on every Senator’s agenda.  Call your Senators now and ask them to consider these reforms. 

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Comments are welcome as long as you’re not filibustering.

Recommended reading

The History of the Filibuster by Sarah Binder of the Brookings Institution

Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy by Adam Jentleson

Wikipedia has an excellent overview with a history.

A Republican perspective from Jack Kemp in 2004.

A proposal for judicial nomination reform from American Constitution Society.

Former Senator Al Franken’s proposal brilliant idea to shift the burden of continuing debate to the filibustering party.