The U.S. Senate was devised to be a more deliberative body than the passionate House. The idea was to have a smaller group of more mature members, with greater stability in office, so that legislation could be reviewed more analytically. As George Washington famously said, the Senate was there to “cool” legislation.
The Senate’s filibuster rule, which requires 60% votes to close debate on any legislation, highlights the difference between the Senate and the House. In the House, a freshly chosen passionate majority can become dictatorial and prevent the opposition from having a say in the passing of laws. The existence of filibuster in the Senate ensures that at least in one chamber the minority has a real chance to end or improve bad proposals.
The filibuster is fundamental to the U.S. system of government. This is the tool that makes governments pay attention to the minority views. Otherwise the country would routinely experience tyranny of the majority that America’s founders worked so hard to avoid. The process of filibuster also improves laws by making them better drafted, more practical, and more widely accepted.
There have always been efforts to do away with the filibuster rule and allow laws to be passed with a simple majority. Usually these efforts come from the majority party in power, for it gets frustrated by the minority’s obstructionism. Lawmakers then find creative ways to get around the filibuster.
Here are excerpts from a story that describes one way lawmakers try to bypass the filibuster: the process of budget reconciliation…
This is not how the Senate is supposed to work
Paralyzed by the filibuster, the Senate has found a terrible way to legislate.
By Ezra Klein
There is a new norm developing in American politics, and it’s a worrying one: Because a critical mass of senators refuse to either eliminate the filibuster or accept the limits it imposes, the Senate is writing major legislation under extreme and bizarre constraints. The result is that important bills in American politics are compromised and defective from the start.
This was on display in the recent health care fight, and we’re seeing it again in the tax reform effort. In both cases, the GOP is trying to write massive, sweeping legislation under the budget reconciliation rules — a process that protects the result from death by filibuster but also hamstrings what the bills can actually do.
This isn’t just a Republican problem. Democrats have been using reconciliation more and more brazenly, and while Republicans have pushed it further than ever before under Trump, it’s likely that Democrats will follow in their footsteps when they retake power.
The root issue here is that the Senate’s legislative process has been upended by the abusive use of the filibuster, and neither party has been willing or able to address it. The result is the US Senate is moving towards a process where major bills are protected from filibusters, but the cost of that protection is those bills are distorted by a nonsensical process where the goal is surviving parliamentary challenge, not writing the best policy. The possible costs here are immense: a future in which most significant legislation is drafted poorly and the country is left to suffer the consequences.
“Reconciliation was designed for minor budgetary adjustments, not major policy proposals,” said Alan Frumin, a former Senate parliamentarian.
Neither party likes this state of affairs. Neither party meant to create this state of affairs. And it’s time both parties had the courage to come together and address it.
What is budget reconciliation, and how did it eat the Senate?
A bit of history is useful here. The budget reconciliation process was created in 1974 to expedite Congress’s budget process. The idea was to create a shortcut for an annual bill aligning how much Congress intended to tax and spend with how much it was actually taxing and spending.
The bill was given special protections from the normal delays and impediments of the legislative process — notably, it was protected from the Senate filibuster and could only be debated for 20 hours. The result was that a reconciliation bill could pass with only 51 votes, while normal legislation could be held to a 60-vote threshold.
Almost immediately, legislators began trying to jam their pet projects through reconciliation. And so in 1985, Congress created a roadblock called the “Byrd Rule,” which limited the kinds of bills that could use the shortcut.
The tyranny of the filibuster
In 1964, President Lyndon Johnson’s Senate liaison, Mike Manatos, wrote a memo assessing the results of the election on Medicare’s chances of passage. After ticking through the winners and losers, he concluded, “if all our supporters are present and voting we would win by a vote of 55 to 45.”
Imagine that. In living memory, the Senate could consider a bill as consequential as Medicare without anyone expecting a filibuster. (Medicare, by the way, ultimately passed with 70 votes in the Senate — again, a different time.)
Filibusters were rare in past Senates (with one gruesome exception: they were used routinely to block anti-lynching and civil rights legislation). According to official records, there were only three votes to break a filibuster from 1964 to 1965. From 2013 to 2014, there were 218.
The filibuster, once a rarity, has become omnipresent. The reasons for this are many, but political scientists mostly blame the rising polarization of the two parties, and particularly the tactical obstructionism pioneered by Republicans. The bottom line, though, is that basically nothing passes the Senate now without 60 votes, and the bipartisanship necessary to find those 60 votes is in sparser supply than ever before.
The majority party could solve this problem in one of two ways. The first way would be to simply eliminate the filibuster — a rule change that could be accomplished, at any moment, with only 51 votes. There’s precedent for this: In 2013, Harry Reid and the Democrats exempted executive branch nominations and non-Supreme Court judicial appointments from the filibuster. In 2017, Mitch McConnell and the Republicans did the same for Supreme Court nominations. The legislative filibuster endures only because a majority of senators want it to endure.
Which raises the second possibility: The majority party could simply live with the filibuster. They could propose only bills that could attract some bipartisan support. They could accept the defeat of priorities that don’t have cross-party appeal. This would be a world in which the Senate does less but pushes itself harder to find common ground.
Rule by reconciliation
What the Senate, under both parties, has actually done is find a third way: relentlessly expand the budget reconciliation process to absorb bills it wasn’t designed to carry, and write those bills in increasingly bizarre ways to satisfy the Byrd Rule. That way, they don’t have to get rid of the filibuster, and they also don’t have to abandon their agendas. “It represents the path of least resistance,” says James Wallner, a former GOP Senate staffer and a member of the R Street Institute’s Governance Project.
But the result is legislation that is often unfinished, poorly written, or booby-trapped.
So this, then, is where the world’s greatest deliberative body has ended up: trapped by its own unwillingness to either reform or abide by the filibuster, and abusing the reconciliation process in ways that degrade the quality of the rare pieces of major legislation it actually does pass.
This article was first published on Vox on 29 September 2017