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August 28, 2014

Can Senate De-Escalate Partisan Nuke Warfare? | Procedural Politics

In my previous column (“McConnell’s Lament Stirs Fresh Breeze of Hope,” Jan. 29) I called attention to Senate Minority Leader Mitch McConnell’s Jan. 8 floor remarks in which he conceded that both parties are to blame for today’s hyper-partisanship and vowed to restore the committee system, Senate floor debates and a full week’s work if Republicans regain control of the chamber. McConnell said this will not require a change in Senate rules, but rather a change in behavior that will not happen overnight.

There is no question that Congress needs a major makeover from a culture of campaigning to a culture of legislating. There is no procedural elixir that can produce that kind of behavioral conversion. It will instead require leadership dedication and direction by example, membership willingness to alter deeply embedded behavioral patterns geared primarily to winning re-election, and a strong and sustained public demand for a Congress that works.

Although McConnell reiterated his anger over Senate Majority Leader Harry Reid’s power play last November to unilaterally change the Senate’s filibuster rules on most nominations, he did not indicate what, if anything, he would do about it if Republicans regain majority control.

Reid’s change alone has not altered the basic character of the Senate, but it will if taken to its logical conclusion of permitting a simple majority vote to shut down minority floor participation. Those who ask whether the Senate could come to look just like the House are posing the right question. If the Senate loses its unique role as the cooling saucer for the impetuous actions of the House, its check on majority power will be lost.

A Senate Democratic majority today or Republican majority next year could well decide to extend the Reid rule to legislation to expedite enactment of the party’s legislative agenda. One person’s slippery slope is another’s invitation to strap on the skis and race to the bottom, taking out all those pesky procedural gates along the way.

Despite McConnell’s contention that no changes in Senate rules are needed, there are three changes the Rules and Administration Committee would be well-advised to consider before the partisan makeup of the next Congress is determined. First and foremost, a rule change should be adopted that takes future threats of deploying the “nuclear option” off the table. Specifically, the rule should prohibit the practice of indirectly changing Senate rules by new precedents based on overturning a ruling of the chair on a point of order.

The House already has such a prohibition in its precedents. In 1977, during House debate on a contentious foreign aid conference report, Rep. John Ashbrook, R-Ohio, attempted to slow things down by raising a point of order that a quorum wasn’t present. The chairman refused to entertain the point of order on grounds that House rules explicitly prohibit a quorum call demand unless an actual vote is pending. When Ashbrook attempted to appeal the chairman’s explanation, the chairman responded: “To permit an appeal would be tantamount to permitting a direct change in the rule itself.” As Deschler-Brown’s House precedents elucidate: “An appeal from the ruling of the chair is not in order if the effect of the appeal, if sustained, would be to change a rule of the House.”

Because the Senate has no such rule or precedent, pulling the nuclear trigger and changing the rules by majority vote after overturning the chairman’s ruling is a live option whenever the majority wishes to deploy it. Playing egg-toss with live grenades anytime the majority is upset with minority obstruction is no way to secure parliamentary peace or consistency.

Abolishing the nuclear option should be tied directly to walking-back the Reid rule of majority cloture for nominations. Reid is correct in arguing that nominations are different from legislation and that presidents should be entitled to at least an up-or-down vote on their choices — an understanding that has held sway for most of Senate history. Perhaps a cloture threshold of 55 votes plus expedited consideration of nominations favorably reported from committee would achieve a reasonable balancing of interests.

Finally, the committee should report a rule change to guarantee minority and majority party senators an equal and reasonable minimum number of amendments to legislation to preclude the majority leader’s practice of blocking them by filling the amendment tree. De-escalating partisan procedural wars is possible when both parties benefit. Let the nuclear disarmament talks begin.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

  • PatrickG

    “the Senate loses its unique role as the cooling saucer for the impetuous
    actions of the House, its check on majority power will be lost.” The first clause is true. The second does not follow. The Senate while conceived as a ‘cooling’ chamber and a check on rash passion was never meant to function as a check on majority power.

    • Charles Wolf

      The Senate was “conceived” a bit before the “cooling saucer” (aka the filibuster) came into existence there.
      Is seems that former National Rifle Assoc. United States VP Aaron Burr (the dude who shot to death the guy on the $10 bill) got it going in 1806.

      So just tell your originalist zombie friends
      No; Jesus did not put the filibuster in the US Constitution.

  • backToSchool82A

    Although collective altruism may appeal to our instincts, a closer look reveals that it is an inferior way to improve our quality of life.

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