Skip Navigation

Why Tinkering With the Senate’s Rules Is Better Than An Overhaul

Some Senators are contemplating minor changes to the filibuster. They should stop there.

December 10, 2015

Is filibuster “reform” sneaking up on us?

While we’ve been worrying about Syrian refugees, climate change, and Donald Trump, six Republican Senators have spent the fall squirreled away working on potential  filibuster changes.

One of them, Tennessee Republican Lamar Alexander, even launched a charm offensive on the incoming Democratic leader, New York’s Chuck Schumer. And what a charm offensive it was, as the Southerner took the Brooklynite to the Smoky Mountains. There, at the mega-luxurious Blackberry Farm (“One of America’s greatest hidden treasures”), the two Senators had some fine wine, some gourmet food, and a little filibuster talk.

When they got back to Washington, D.C., Schumer murmured positively. “We could come up with something good,” he told The New York Times.

If by “good” he means minimal, then so far Schumer is right. But he and Alexander will need to bat off some bad ideas and find some meritorious ones before they do anything that earns the word reform.

Thus far, Alexander’s group has floated two mild changes to the filibuster. Both have the same goal: speed up the process. Neither alters the impact of the filibuster—the effective 60-vote requirement to pass anything in the Senate.

First, they’ve suggested eliminating the filibuster on a key parliamentary move, called the “Motion to Proceed.” That motion should be a simple traffic control tool, used to turn the Senate to formal consideration of a piece of legislation. Filibustering a Motion to Proceed is a lot like getting angry at a school crossing guard. But guess what? Democrats and Republicans have been filibustering the Motion to Proceed regularly in the last few years.

Second, Alexander’s group is considering accelerating the vote on whether to end a filibuster. Under current rules, once a filibuster is underway, it can only be ended with a cloture vote. And a cloture vote occurs two days after it is called because of what is known as the “intervening day” rule. Alexander et al want to eliminate the intervening day rule.

To make the changes even more palatable, Alexander has suggested that they would only be implemented in 2017 – after next year’s election—and after a two-thirds vote in the Senate.

These small, unobjectionable changes barely merit the term “reform.” They are so slight that it’s hard to see how they will achieve anything other than save a little time on the Senate floor. So, throw in a dinner at Blackberry Farm, and, sure, why not?

But as always in D.C., something else is brewing.

Two recent articles, one by the Brookings Institution and the other by a prominent Georgetown Law constitutional scholar, have proposed a more radical change to the filibuster. Both want to eliminate the filibuster for appropriations bills.

Sounds innocent enough: the process of funding government agencies is broken. We “careen from budget train wreck to budget train wreck,” as Peter Hanson puts it in his Brookings paper.  He argues that it’s time to restore regular order for the quotidian work of appropriations by getting rid of the filibuster. Meanwhile, policy fights can proceed on legislation and with the filibuster still in place.

No one disputes that the current congressional budget and spending process is an embarrassing mess. So Hanson’s idea sounds appealing.

However, Georgetown Law Prof.Randy Barnett’s piece advocating the same proposal lets the political implications peek through. “Ending the filibuster for appropriations would restore Congress’s ability to use the power of the purse to oppose presidential overreach, enabling it to withhold funds for executive actions of which Congress disapproves,” he writes with co-author Jay Cost.

How nice to think that filibuster-free appropriations would just be used to deal with “overreach.” But it won’t. It’s misleading to suggest that all the proposal will do is restore “regular order” to budgeting.

Eliminating the filibuster for appropriations is more than half way to eradicating it altogether. Appropriations are policy legislation.

In the late 70s and 80s, in the midst of regular order, almost 40 percent of all floor action on spending bills involved “limitation riders,” those pesky provisions Congress puts in a bill to bar the Executive Branch from spending money on particular issues. In the 70s and 80s, limitation riders were used to slow down the use of air bags in cars, to fight school desegregation efforts, and to stop the Executive Branch from spending money on the Nicaraguan Contras. (That’s why we got Iran-Contra). Today, such riders are used to keep Guantanamo open, to inhibit the Consumer Financial Protection Board, and are being proposed to punish so-called immigration sanctuary cities.

Hanson and Barnett’s proposal suffers from the same flaw that afflicts almost all such improvement schemes. They are of the moment. Appropriations are broken! Judges aren’t getting confirmed!  The filibuster is to blame!

Consequently, their scheme fails to revise the filibuster in a principled way, using procedure to tame an inherently partisan institution.

Instead of focusing on a short-term problem, why not take a step back and ask: what good can the filibuster do? How can we modify it to reinforce that good? University of Baltimore School of Law’s Dean Ron Weich puts it this way: “When functioning properly, [the filibuster] encourages moderation and rewards consensus, values that our polarized political system badly needs.”

So let’s waive or alter the filibuster when there is substantial evidence of bipartisan cooperation. And there is a clear, simple gauge of that: the Committee vote. If a bill comes out of Committee with a large, bipartisan margin, then fast-track it on the floor of the full Senate. (Read more on this idea here).

If Alexander and Schumer back an idea like that, then dinner’s on me.

(Photo: Thinkstock)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

Follow the author’s Tumblr page: Electoral Dysfunction