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How to Rescue the Filibuster and Congress

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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The most absurd spectacle in Washington right now is the Republicans' effort to pass a budget resolution. It’s not entirely their fault. The current budget rules are stupid and outdated; it's time to change them.

Here's the situation: The House supports a more hard-edged conservative budget than the Senate, where several Republicans are up for reelection in typically Democratic-leaning states. That leaves the House facing a choice of symbolism. It can pursue the symbolic accomplishment of passing the most conservative budget possible, then watch that bill falter in the Senate. Or it can pass a less conservative budget in order to gain support for it in the Senate. In that case, the symbolic victory is achieved in forcing President Barack Obama to veto the unified Congress's reconciliation bill.

Why is this a matter of symbolism? Partly because budget resolutions are not actually law. They merely provide instructions for setting taxes and spending for the rest of the fiscal year. By passing a budget resolution with the appropriate language, however, Congress is able to package it as a special bill -- “reconciliation” -- which cannot be filibustered in the Senate. (Due to the Senate’s “Byrd Rule," however, it can only include provisions with budgetary effects.)

Given current political dynamics, all reconciliation can accomplish for Republicans is to move their list of priorities – repealing Obamacare, for example – beyond the Senate. So instead of seeing their priorities defeated in a Senate filibuster, they will watch Obama veto them instead.

This really makes no sense. Still, a one-time free pass to avoid a filibuster has merit, especially in a polarized capital. So Congress should trade in its reconciliation free pass for one that actually might work. 

Instead of a budget-based reconciliation, Congress needs a superbill -- let's call it a "Leadership Bill" -- that the majority party could use as a filibuster-exempt legislative vehicle once a year. It could take the form of a single high-priority piece of legislation. Or it could be the majority's entire legislative program for the session, all packed into one bill.

Yet the Leadership Bill would be self-limiting: Because the more the parties try to stuff into it, the more likely that the whole thing implodes. Another limitation? The minority party would have the right to offer at least some amendments -- and those, too, would need only a simple majority to pass.

As a result, a Leadership Bill gives something to both the majority and minority. At the same time, it would preserve the filibuster, which, given the current pace of filibuster abuse, is otherwise doomed. With minority parties blocking practically everything, a fed-up majority party will soon kill it.

A Senate without the filibuster would be much more like the House, which would be bad for Senators and bad for the institution, which functions best when individual Senators have incentives to legislate, not merely enact party platforms. The old norms, in which filibusters were deployed sparingly, cannot be revived. The only way to save the filibuster is to reform it.

A Leadership Bill would counter filibuster abuse while enabling minority parties to propose more amendments. In other words, it encourages a return to legislating. But even if it only enables majorities to get their way more often without messing up the budget process, it would still be an improvement.

  1. How many amendments? Under exactly what arrangements? Good questions, and actually writing rules for a Superbill would require very specific answers. In general, however, the idea would be that the minority party has a real, but limited, chance to insert its own ideas if it has the votes.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Francis Wilkinson at fwilkinson1@bloomberg.net