The End of the Senate As We Know It?

On Thursday night, the U.S. Senate may have changed forever. The Senate invoked the once dreaded “nuclear option,” potentially changing the rules governing filibuster for the foreseeable future. Those who find the details unnecessary should skip the next paragraph.

What happened was this: As the Senate was debating a bill on China’s currency, a dispute arose over which amendments the Republicans could offer. In response, Sen. McConnell motioned for a suspension of the rules in order to vote on a version of Obama’s jobs bill. The move opened room for a debate on the motion and the potential of a filibuster. But Senator Reid objected, saying that it was “dilatory.” Now, there’s never been a precedent in the Senate that you can stop a motion for being a waste of time. So the parliamentarian advised the chair of this and he overruled Reid’s objection. But the parliamentarian isn’t in charge of the Senate. Neither is the chair. So Reid appealed the chair’s ruling, a move that requires a simple majority.* He won that vote and thereby created a precedent for preventing motions that are “dilatory.” Since any motion with the potential for a filibuster could fall under this precedent, Reid effectively paved the way for Senators to prevent a filibuster with a bare majority. (You can read the accounts by the Washington Post and ABC here.)

Allowing a bare majority to prevent a filibuster makes the Senate much more like the House, where the majority is able to set the rules for each bill. As you might expect, Republicans were pretty frustrated to have centuries of precedent (the only real Senate rules) overturned in a moment. There were some Democrats who were also unsure that it had been a wise move. Senator Schumer of New York gave a moving speech about why, though regrettable, such a move was necessary. He did not want the Senate to become more like the House any more than his Republican colleagues. But with filibusters having become so common, even routine, he did not see any other way that the Senate could accomplish the work of the nation.

The night ended with plenty of uncertainty. Senate leaders called for a cooling-off period over the weekend. Reid proposed a bipartisan caucus in which Senators could all sit together with Reid and McConnell on the stand and air their frustrations over how things have been run. When they return for some contentious votes on Tuesday we’ll see where we stand. Perhaps soon we’ll know whether the filibuster is dead forever.

Personally, I’m torn on the filibuster. It certainly makes the Senate the less nimble of the two bodies. And its use has an unsavory past. Certainly the now-routine filibustering of every matter of Senate business, no matter how minor, is unworkable. But the minority does need some tools for shaping legislation. I would prefer to see real reform of the procedures of the Senate, including some preservation of a real filibuster, than simply have this become a majority chamber like the House.


* On a side note, I once participated in a similar maneuver during a senate simulation in college. The Republicans (then in the majority) were trying to kill an education bill by attaching an amendment banning abortion. We succeeded in attaching the amendment, so the Democrats tried to amend our amendment to ban only partial birth abortion. We overruled the chair to declare that partial birth abortion had nothing to do with abortion and that the amendment was therefore out of order. The Democrats stormed out of the chamber for the first time that night. It was not a good day for bipartisanship.

4 Responses to The End of the Senate As We Know It?
  1. CJ
    October 10, 2011 | 1:44 am

    Perhaps it is a good lesson to those who will consistently use the fillibuster to advance a political agenda will think twice now. I don’ t agree with it either however given the current state of the senate, why not use it? Its like playing a football or basketball. Sure you dont WANT to foul Shaq, but you know that he sits in the post and cherry picks so why not make his awful fouls shooting a factor in the game? In the end it clearly comes down to political gamesmanship. Which is the precise reason why our government is so broken. These guys don’t honestly work for the majority anymore, its all about campaign contributions.

    • Jason
      October 11, 2011 | 12:52 pm

      It certainly seems to be a case of “use it and lose it.” It’s always been a frustration for those subject to it, but when it was occasional they could put up with it because of the other privileges it was linked to. Now that it has become a constant its not so endearing to anyone.

      I think the issue here is one of partisanship. I don’t mean by that “unwillingness to work together.” I mean, “emphasizing party.” In their voting habits, Senators have become almost wholly a reflection of the national parties. Rarely do they reflect regional variations, cross-cutting ideological perspectives, etc. When they did so, there was more room for cross-party deal making and the individualist ethos made sense. Now two basically solid blocks compete in a space governed by rules designed for individuality. The logic of the system simply doesn’t make sense anymore.

      As that tension has increased, we’ve seen incremental changes to the filibuster rule. Sen. Frist threatened to kill it for judicial nominees, only to be prevented by the “Gang of 14.” But the writing was on the wall and Reid ended up making the first such move Thursday. We’ll see where it goes from there.

  2. kaahl
    November 2, 2011 | 6:37 pm

    interesting take. my original thought was that perhaps killing filibusters to re-instate the simply majority rule of the senate is a good thing. with the standard use of filibusters, the normal day to day work of the senate required a super-majority, approximately the same sort of agreement needed for constitutional changes.

    perhaps it would be good to have a simple majority rule in the senate–differing from the House in that its members would probably be more moderate given that they have to please the entire state. but with the trend towards toeing the party line, this may be meaningless.

    • Jason
      November 3, 2011 | 4:15 pm

      I’m not ready to entirely scrap all super-majority requirements in the Senate (in part because I think the partisanship of the House is catching up to the upper chamber as well), but I do think they need to re-evaluate the rules. I’d make holds much more difficult if not abolish them and exempt judicial nominations and certain executive offices from filibusters.