How McConnell Can Save the Senate
Mitch McConnell may be sincere in his hopes of making the Senate work again -- in his words, getting it "back to normal." Even if the new majority leader means it, as Congress scholar Sarah Binder said last week, there’s no way of returning to the Senate of the 1970s and 1980s.
The breakdown in the norms on using the filibuster is a main reason the Senate has changed over the years. This culminated in the Republican declaration of a 60-vote Senate after the 2008 election; in effect, every bill, every amendment and every nomination were subject to a filibuster, because Democrats needed to muster the 60 votes required to stop it. The Republicans in Congress are sticking to that strategy in this lame-duck session, even though it means blocking their own preferred judicial nominees, as reported by Huffington Post's Jennifer Bendery.
Getting the Senate back to “normal” isn't going to happen. McConnell can’t force the minority party to voluntarily give up the tactics that he has relied on for the last six years. Instead, the Senate needs to update its rules to account for the new reality. Fortunately, the divided government is going to be the perfect time to get both the majority and minority to reach a consensus.
That’s because the stakes are a lot lower now. In the new Congress, the Republican majority won't need to resort to the filibuster to defeat any nominations on which they are united. And the president’s veto power means that a bill he and the Democrats oppose won’t become law. So it’s at least possible for both parties to figure out ground rules that can keep what’s best about the Senate. This means protecting the influence of every individual senator, while striking a workable balance between the ability of the majority and minority parties to act.
Whatever the details, any rule changes passed by a consensus vote would help repair the damage caused by the filibuster fight that led to Harry Reid’s majority-imposed “nuclear option” in 2013. It would still be true that once a party has gone “nuclear” by imposing changes by majority vote, others will be more tempted to do so in the future. But a new set of rules backed by both parties can help move the Senate beyond that episode. The bottom line is that the old rules in place from the 1970s until fall 2013 were ill-designed for the challenges of current party polarization.
For executive-branch nominations, all they need to do is ratify the new status quo. Currently, defeating a filibuster needs only the same simple majority that it takes to confirm nominations. There’s no good argument for supermajority protection against executive-branch nominees. However, the ability of individual senators to filibuster (and therefore to put “holds” on nominations) allows them to bargain with the executive branch on behalf of important constituencies.
Judicial nominations are different because they are lifetime appointments, and stronger protection for minority parties is warranted. On the other hand, there’s no real reason for individual senators to have much influence. The rules, then, should restore the need for a supermajority to defeat a filibuster on judges. Majority leaders should not respect “holds" in these selections, and the rules should be set up so individual senators can do little to slow down judicial confirmations.
As for legislation, the rules should protect the influence of individual senators and minority parties, as they do now. Yet they should also allow majorities to get things done. The balance right now, with a 60-vote Senate, leans too far toward minority parties.
My suggested “Superbill!” would create a new procedure. One privileged leadership bill a year could contain whatever the majority party chose to include, and would not be subject to a filibuster. It would need only a simple majority to pass. To protect the minority party, however, amendments relevant to the contents of the bill would also need only a simple majority to pass. So if it wants to use this process, the majority would risk the adoption of popular ideas from the minority.
Overall, reform along these lines would have something for the majority (making it easier to pass bills), something for the minority (making it easier to block judges) and plenty for protecting the rights of individual senators.
Changing the rules has something big for McConnell, too: Solving the filibuster wars would be a great way for him to start out as majority leader. It would buy him a fair amount of leeway from Beltway centrist types when, as he knows will happen, radicals in his conference push him into difficult positions. Most important, however, rules changes reached by consensus would be good for the Senate.
At least beyond the "blue slip" process, which gives senators a large voice in the selection of judges for their home states. Whatever the merits of that procedure, it takes place at the committee level, so it's beyond the reach of Senate rules reform.
How large? I don't think there's any precise formula for choosing the number. It was 60 until majority-imposed changes last year. That's one possible choice; another is to peg it to the size of the majority party, so that in the 114th Senate (and assuming that Republicans win the runoff in Louisiana), it would take 54 senators to defeat a filibuster. I'd also flip the responsibility, so that in a 54-46 senate it would take 47 votes to sustain the filibuster, rather than 54 votes to defeat it.
Superbill! then is more or less a souped-up reconciliation. The reconciliation procedure allows for a bill which cannot be filibustered, but its ties to the budget process restrict subject matter and impose other constraints. Reconciliation was a historical accident; there's no substantive reason the majority should have easier rules for budget-related material than for other bills.
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