Thursday, January 24, 2013

Proposed Senate Reforms: Recap and Discussion

The Congressional news (see links to text in article) of the day is that Senate majority leader Harry Reid and minority leader Mitch McConnell have reached a tentative agreement on a package of Senate reforms, subject to approval by (most of) their party conferences.

The reforms are limited to agenda-setting motions, conference committees, and nominations. Here is a recap with commentary following each proposal:

Motion to Proceed

In practice, senators set their chamber agenda by unanimous consent, or by making motions to proceed to a bill that is waiting to be considered on the Senate floor. Currently these motions can be filibustered (unless they are offered in "morning hour", which never happens), so before the Senate can begin debating a bill (say, immigration reform) it must first agree by a 60% majority to stop arguing about whether to even discuss the bill. Since 1979, senators (especially majority leaders) have argued that these motions should always be immune from filibusters. Go ahead and filibuster bills, they say, but don't filibuster whether we even discuss issues.

There are two different proposals.
1) A process for a simple-majority motion to proceed. This proposal, which would be a standing order that expires at the end of the current Congress, would allow four hours of debate on the motion and, if the motion is approved, would guarantee the right to offer four amendments, sequenced as
a) minority party
b) majority party
c) minority party
d) majority party
These amendments must be filed (with sequenced deadlines) before any vote to invoke cloture on the bill. If cloture is approved on the bill (by the standard 60% majority) then each amendment is limited to 1 hour of debate and any non-germane amendment would require 60 votes to pass.

My analysis: this process seems tailor-made for the most contentious issues. The majority party gets the right to bring its priority bills to the floor as long as the minority party can force a roll call vote on any issue it wants. While it is possible that these guaranteed amendments will be used to perfect the underlying legislation, it is also possible (and quite likely) that each party will use this process to force votes on its hot-button "message" issues. Note, too, that the majority party gets the last guaranteed amendment slot, so it can use its last mover advantage to erase any actions taken on the minority-offered amendments. This would enable majority party members to say "I voted for [X] before I voted against it" on any issue.

It is also noteworthy that this version grants less power to party leaders than earlier drafts. The previous iteration specified that the right to offer these guaranteed amendments belonged to the floor managers for a specified bill and to the minority and majority party leaders. This version does not make this explicit and instead grants amendment rights to "the minority" and "the majority."

2) An expedited bipartisan process to invoke cloture on motions to proceed. This permanent rule change would
a) allow a vote on the motion to proceed to occur after a one-day wait (instead of the regular two)
b) prohibit any debate after cloture is invoked
...but only if the leaders and seven other members of each party sign onto the cloture petition.

My analysis: I am not sure how often this will be used. Both party leaders would have to cooperate to squelch dissent. The payoff is a shortened timeline for proceeding to a bill. How often will BOTH leaders think that the payoff is worth the headache and heartache of telling a member of their own party to shut up?

Conference Committees

Currently an effort to go to conference with the House on a particular bill is subject to three separate filibusters:  first on the motion to disagree with the action of the House, second on the motion to request a conference, and third on a motion to appoint conferees. If a single senator forces the issue, it would take at least six votes (three cloture votes, three simple majority votes), up to 90 hours of post-cloture debate, and six days of waiting for cloture petitions that have been filed to "ripen" so the Senate can vote on them. Of course, once a bill returns from the conference committee it can be filibustered again!

The leaders propose a rule change that condenses the three motions into a single motion and shortens the timeline to invoke cloture on the motion: a two-hour wait for a cloture petition to ripen and zero debate time after a successful cloture vote.

My analysis: kudos. Seriously. The traditional conference committee process was in danger of disappearing because few MCs wanted to brave the slings and arrows of outrageous obstruction in the Senate. This reform makes it feasible to go to conference again, subject to a single three-fifths vote.

Nominations

Currently, nominations wending their way through the Senate are subject to a filibuster. They are also subject to filibuster threats, or holds. Since most nominations are not worth the floor time required for a separate cloture-based fight (file a cloture petition, wait two days, 3/5 vote on cloture, 30 hours of post-cloture debate, simple majority vote on approval), a single threat of a filibuster can tie up a nomination for days, months, or even indefinitely. These threats often have nothing to do with the nominee herself and instead are based on senators' arguments with the administration or each other, but nominees often pay a hellacious price as they linger in the limbo between the job they have already quit and the job they cannot start until they are approved.

The standing order proposal makes two minor changes. First, post-cloture debate on a nomination is reduced from 30 to eight hours. This only applies to executive branch officials who are not in the top strata of officials. Second, post-cloture debate on district court judges is reduced to two hours of post-cloture debate.  Both these changes expire at the end of the current Congress.

My analysis: these are incremental changes in the right direction. Individual senators can still force cloture votes and approval votes on as many nominations as they like, and they can gain a lot of leverage by making such threats. I would prefer to see guaranteed simple-majority votes on executive branch nominations (they are short-termers, and the president must accept the blame if they do a bad job) and see shortened debate times for appellate court judges as well. I suspect that in order for the Senate to move further in this direction, senators need to find different and healthier ways to hold the executive branch accountable, such as holding committee hearings and passing appropriations bills.

Overall

I expect that this package of reforms will be criticized for what it is not. It does not lower the cloture threshold or set up a realistic process for forcing filibustering senators to hold the floor. Nonetheless, it does address some of the worst problem areas: nominations, conference committees, and redundant filibusters as the Senate debates about what to debate. What I do like about these reforms is that they focus on an under-discussed source of Senate paralysis: the time lags built into the operation of the cloture rule. It's not just the cloture rule's supermajority threshold that retards the Senate; the time required to wait for a cloture vote and the 30 hours of "debate" time after the Senate votes to limit discussion are extremely costly in a chamber with a limited budget of floor time. They force the Senate to waste its days and nights, to remain in session but empty, and allow individual senators great power over petty issues.

Senator Reid will doubtless be blamed for selling out the true reformers of the Senate instead of attempting a grand confrontation with the Republicans. Reid has a persuasive if indelicate answer: there probably weren't enough Democratic votes to push through more drastic reforms, and the short-term payoffs for any major change would be limited by the Republican majority in the House.

2 comments:

  1. He may not have had the votes, but Merkley thought he did. It might have been nice to see who was right by bringing the Merkley-Udall bill to the floor.

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  2. Sorry folks but the change isn't. Maybe in the 2014 election the Senate will have at least a 60-40 and be able to change the rules to get rid of the 2/3 vote. Merely a majority should be the rule. Breaking the filibuster is very important for any progress.

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