Changing Cloture Rules to Limit the Filibuster
Although the framers believed that the Senate would put a brake on majority tyranny, the filibuster was not considered at the Federal Convention. Originally, both houses allowed extended debate. As the House grew in size in the early eighteenth century, it placed limits on floor speech, but the Senate did not. In 1917, at the request of President Wilson, the Senate adopted Rule XXII, which allowed 2/3rds of the Senate to invoke cloture and end debate. The Senate revised the rule in 1975 by lowering the vote for cloture to 3/5ths, or 60 Senators. Still, given the distribution of voters across the states, theoretically twenty-one of the smallest states can block the Senate from voting on a bill. Since the combined population of those twenty-one states is about 11% of the total US population, Senate rules protect the minority in ways the framers may not have imagined.
Increases in filibusters and cloture votes (noted in Module 5) have caused reformers and several Senators, led by Jeff Merkley (D-OR), to propose reforms. A coalition of progressive groups called “Fix the Senate Now” proposed a package of four measures:
Consistent with constitutional norms, proponents of the filibuster argue that it protects minority rights, ensures that bills are thoroughly debated, encourages deliberation, and engages the public in the process. Opponents argue that the filibuster thwarts majority rule, delays or kills important legislation, harms the Senate’s reputation, and encourages extortion for unwarranted concessions to bills. (Oleszek 2014)
In November 2013, Democratic Senate Majority Leader Harry Reid (NV) changed the cloture rule. After seemingly endless delay tactics that prevented the Senate from voting on President Obama’s nominees for various executive branch positions and federal court judgeships, Reid resorted to the so-called “nuclear option.” Reid bypassed the cloture rule and allowed a simple majority to move forward with votes on the nominees. Reid announced: “The American people believe the Senate is broken, and I believe the American people are right,” he said, adding, “It’s time to get the Senate working again.” Republican Minority Leader, Mitch McConnell (KY) called the move a “power grab” and lamented “It’s a sad day in the history of the Senate.” (Quoted in Kane 2013) Although the cloture rule remained in place for Supreme Court nominees and legislative business, Reid clearly had pushed the envelope.
When Republicans gained a majority in the 2014 congressional midterm elections and McConnell became Majority Leader, the “Reid rule” was no longer in force. But Reid has cracked the door of cloture reform and a future Senate Majority Leader may see fit to push it wide open. We probably have not seen the end of the debate over cloture.
Still, reforming the cloture rule may not dramatically improve the flow of business in the Senate. As the graph in Module 5 demonstrates, when the Senate made it easier to invoke cloture in 1975 by reducing the number of votes required to end a filibuster from 2/3 to 3/5, the number of filibusters and cloture votes did not decline—in fact, they increased significantly. Many observers have noted that as it becomes easier to invoke cloture, the costs to filibustering have gone down over time, which has the perverse consequence of increasing senators’ willingness to engage in the tactic.
Increasing Time and Improving the Quality of House Debates
Whereas debate is too open in the Senate, many observers believe that it is too limited in the House. In their study of “deliberative choices,” Garry Mucciaroni and Paul Quirk (2006, 207) found that “lengthier debates have more information value than shorter ones.” More time should be devoted to floor debate in the House, which can be achieved in a variety of ways. The least costly measures discussed by Mucciaroni and Quirk are (1) using suspension of the rules more often for noncontroversial legislation and (2) delegating commemorative measures to a commission. Such changes would modestly increase floor time for debating important bills.
Mucciaroni and Quirk (2006) mention other reforms that have both benefits and costs. First, since a great deal of floor time is devoted to annual appropriations, a biennial budget would create more floor time, but it would also reduce oversight of executive agencies whose officials currently testify before congressional committees about how their agencies spend annual appropriations. Second, campaign finance reforms—such as public financing or free air time for candidates during campaign season—would lessen the time spent by sitting members of Congress on fundraising, but neither approach seems politically feasible to most members. Finally, House leaders could lengthen the schedule so that more days during the session are spent in Washington, though this would mean individual representatives would have less time in their districts interacting with constituents.
The quality of House floor debate could also be improved. The current structure lends itself to short speeches (usually two minutes or less) in which members take positions, often repeating talking points already made by others and promoted by the parties and citing dubious information as proof for an argument. An alternative would be to give fewer members more time to develop a position, but this would reduce the number of representatives who could speak on an issue. Another option would be to create a cross-examination format, but this might be prone to manipulation by debate managers and replace debate on the substance of bills with accusations of procedural violations.
Mann and Ornstein (2006) suggest changing the meeting schedule so that the Congress would meet for two full weeks and recess for two weeks. This schedule would allow extensive, continuous time for deliberation: “Full weeks spent in Washington would provide Congress with more opportunities to do extended legislating—more time to have real debate or discussion on the floor, more time to consider omnibus bills, more opportunities to do real hearings and real markups.” (Mann and Ornstein 2006, 232) They also suggest several procedural reforms: allowing at least twenty-four hours or perhaps three days after the House Rules Committee drafts a resolution before bringing a bill to the floor so that members can learn about bills; limiting the voting time on bills to twenty minutes; and limiting conference proceedings to items that were passed either by the House or the Senate. Finally, Mann and Ornstein (2006, 175-76) proposed eliminating earmarks, i.e. “legislating specific projects for specific districts or states instead of leaving the allocation of resources to professionals.”
A schedule that compelled members to focus more on lawmaking and deliberation would counterbalance the disproportionate time that is spent on representational duties and re-election activities. The procedural reforms are also reasonable, modest steps with minimal costs. But we need to be aware of the possible negative consequences of reforms that appeal to our sense of “good government.” Eliminating earmarks is a popular target of reformers, but earmarking can have positive effects on lawmaking. In a process that is inherently political, some amount of bargaining and trading is inevitable and potentially beneficial. Diana Evans (2004) shows that distributing small benefits to individual members, like earmarks, can facilitate coalition building and allow Congress to pass laws that serve the public interest. Earmarks are also a primary mechanism for providing tangible benefits to states and localities and thus can be an important part of the constituency service that members must provide. In addition, although earmarks are obviously self-serving, they amount to less than 1 percent of total spending. Spending time criticizing projects like the infamous “Bridge to Nowhere” may build political support, but it also detracts attention from far more costly government programs, such as Social Security, Medicare, and Medicaid. Moreover, the alternative to earmarking, i.e. leaving the spending decisions to the “professionals,” ultimately allows executive agencies to spend money appropriated by Congress and further reduces the authority of Congress relative to that of the executive branch.
When Republicans won the majority in 2010, they took the advice of Mann and Ornstein and banned earmarks in 2011. Yet, Congress is still unpopular, federal spending continues to grow, and as one former member of Congress observed, “a ban doesn’t even stop the same dollars from being appropriated — it just shifts the authority for allocating those dollars from Congress to federal agency bureaucrats.” (LaTourette 2014)
To summarize, reforms to improve debate and scheduling in the House and limit obstructionist tactics in the Senate could improve deliberation and lawmaking, and redistricting reform could marginally increase the number of competitive House seats. Enlarging the Senate also would improve representation without too much of a cost to deliberation. Yet the effects of these and other reforms are ambiguous and in some cases, possibly counter-productive. We conclude by reflecting upon the political and institutional constraints of reform.