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The Senate’s unchanging rules

At his recent press conference, President Biden said that he came to the Senate 120 years ago. I knew exactly what he meant because I got there three years after him when I joined the Senate Historical Office in 1976, and it was a different world. Back then, all senators were men, as were all the clerks at the front desk. One party had held the majority for twenty years. Both parties were internally divided, straddling liberal and conservative wings. The most conservative senator was a Democrat, James Eastland of Mississippi. One of the most liberal senators was a Republican, Jacob Javits of New York. Most votes were bipartisan, with the liberals in each party joining to vote against the conservatives, and each side vying for the moderates. Straight party-line votes made headlines.

Today, twenty-five women serve in the Senate. The president of the Senate, secretary of the Senate, sergeant-at-arms, and parliamentarian are all women. The majority in the Senate has flipped nine times since then, or about every six years. The South seceded from the Democratic party, and liberals were expelled from the Republican party as Rinos (Republicans in name only). All this reshuffling made both parties internally cohesive, with very few senators left in the middle. Almost every vote now is along party lines. Bipartisan votes make headlines.

“The Constitution authorizes the Senate to write its own rules. Paradoxically, the Senate created rules that make it exceedingly difficult to revise those rules.”

Clearly, a lot has changed. What hasn’t changed are the Senate’s rules. Unlike the House, which can write new rules at the beginning of each Congress, the Senate defines itself as a continuing body and is operating under the same rules that were in effect in the 1970s. Those rules fit an institution that engaged in a lot more wheeling and dealing and bipartisan coalition-building, but they have not been working as well in an era of polarized partisanship.

The Constitution authorizes the Senate to write its own rules. Paradoxically, the Senate created rules that make it exceedingly difficult to revise those rules. So, whenever it’s necessary to adjust its procedures, the Senate has set new precedents rather than writing new rules. If a majority of senators vote to overturn a ruling of the chair, they set a new precedent, which can completely contradict the written rules. The more polarized parties in the Senate have become, the more likely that change will come through strong-arm tactics by a frustrated majority.

That’s what happened with the nuclear option. Back in 1989 when Democrat George Mitchell was the majority leader, he accused the minority of mounting an increasing number of filibusters. The question for Senate historians was how to quantify filibusters. Senators don’t have to announce a filibuster, and there are multiple ways of conducting one. All that could be quantified were cloture motions, which were indeed increasing, as were failed cloture motions, which Senator Mitchell defined as filibusters.

Over the next two decades the two parties assailed each other on the issue. In 2005 Republican majority leader Bill Frist threatened a “nuclear option” against Democratic filibusters of President George W. Bush’s judicial nominations—potentially setting a precedent to reduce cloture to a simple majority. Democrats protested vigorously—especially their leader, Harry Reid—that this would end robust debate. In 2013, when Senator Reid was majority leader, he complained about persistent Republican filibusters against President Barack Obama’s nominations, and detonated the nuclear option. Republicans protested vigorously—especially their leader, Mitch McConnell and when Republicans returned to the majority, Senator McConnell not only kept the nuclear option but expanded it to include Supreme Court nominations. Democrats protested vigorously.

The two parties had begrudgingly reached a consensus to rationalize the process and end routine filibusters of nominations. Federal offices have to be filled, and the ideological divide between the two parties has grown so wide that neither side is likely to approve of the other party’s nominees. Despite their protests, they both accepted cloture by a simple majority. It has still been possible to derail a nominee if at least a few members of the majority find the candidate unfit, and also possible to slow nominations down. But for the most part we have to expect that nominees are going to reflect the ideology of the incumbent president, and that they are going to be confirmed if the president’s party holds the Senate majority.

Now the question is whether to reduce cloture for legislation. Democrats in the House are all in favor of it. House members from both parties have long claimed that the Senate’s rules made it a graveyard for their bills. President Biden has suggested that the Senate make filibusters tougher and force the dissenters to stand up and talk rather than quietly and effortlessly vote against cloture. Senate Democrats are mulling this over, but Senate Republicans are vigorously opposed. With the Senate divided 50-50, any change would be exceedingly difficult.

Based on the past, and the continued polarization of politics, the more excessive obstructionism becomes the more likely it will be that an exasperated majority party will strong-arm the minority and set a precedent to limit or abolish filibusters. Senators in the opposition will protest vigorously, before embracing the change once they return to the majority. Tensions could well escalate until the Senate abandons the notion of being a continuing body and allows members to rewrite the rules at the start of each Congress. The Senate would be a very different place then, but then it already is.

Featured image by MIKE STOLL.

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