Jonathan Cohn

Change in the Senate?

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This is part 2 in a three-part series on the prospects for government reform in the coming year. Part 1 ran yesterday.

Ah, here we go. This is what everyone wants to hear about, especially liberals. Are we in for a reformed Senate in 2011-2012?

Quick answer? Maybe, on nominations. Not likely, on bills. I'll go through an argument for that position, and then suggest why a January vote on reform might be a mistake, and what Harry Reid should do, starting in the lame duck session, to move reform forward.

Tim Fernholz made the case last week that a January elimination of the filibuster would be both in the Democrats' best interests, and difficult to oppose for Republicans. This is something like Ezra Klein's case that filibuster reform should enacted with a delay of several years, so that neither Democrats nor Republicans will know which side will (first) benefit. 

The problem with that has always been the same: the reason for antimajoritarian rules in the Senate has to do with the logic of the institution itself, and the advantages that individual Senators, including those in the majority, have in retaining as much individual influence as possible.

There are really only three ways to overcome that logic.

One is to elect Senators who care more about the party agenda than they do about their individual careers. That's not impossible, but the 2010 elections didn't make it more likely, at least on the Democratic side.

The second is if Senate procedural reform is so important to majority-party constituencies that Senators are induced to promise reform as a high priority, and therefore act on it. (I suppose this could theoretically happen through bipartisan constituent pressure, but that's less likely). Again, I don't think the 2010 election make that more likely in the short run.

The third way that reform could happen is if current norms and rules break down to the extent that a majority of Senators find the status quo intolerable, and are even willing to sacrifice some of their highly-valued individual influence in order to ease the dysfunction. 

For legislation, the 2010 elections dramatically decrease the extent to which the filibuster makes the Senate dysfunctional. The configuration of Republican House, Democratic (53/47) Senate, and Democratic president means that any bill will need both GOP and Dem support to become a law, and so the 60 vote requirement in the Senate becomes much less important. That makes the logic of retaining individual influence relatively stronger, not weaker.

However, on nominations, there's a lot more at stake. In the 111th Congress (so far!), Republicans repeatedly stalled even noncontroversial judicial and executive branch confirmations. If they follow the same path with 47 Senators instead of 40 or 41, and with fewer moderate conservatives in their conference, then they will be able to basically shut down the process entirely. While it's not clear what stake individual Democratic Senators have in confirmations of District or even Appeals Court judges, they do have a stake in Senate keeping executive branch confirmations possible, because that's part of how the Senate exercises control over policy. The alternative of massive recess appointments would be a real loss for individual Senator influence, and they might well prefer reform. (The same is even true for judicial nominations, but probably not nearly as direct). 

So Senate Democrats do have some real incentives to either reform the confirmation process, or to threaten to do so in order to cut a deal with Republicans.

How should they go about it? Fernholz argues for action in January, at the beginning of the session. Previously, I've thought that perhaps a test vote at that point, to establish the principle that a majority of Senators could change the rules at the beginning of a Congress, was a good idea. I have second thoughts about that now, however. 

The truth is, it's the wrong principle. The correct one to fight for, if they're going to have a fight (and I think Fernholz underestimates the extent to which neutral observers in January would find it unseemly for Senate Democrats to alter the rules in their favor immediately after getting clobbered at the polls), is to establish the principle that majorities can change Senate rules at any time. In practical terms, that's almost certainly true: who exactly is going to prevent it? Of course, it can be stopped politically, but the courts aren't going to step in, and no one else even potentially can. "Each House may determine the Rules of its Proceedings." Full stop. If 51 Senators want to change the rules, they can.

Now, what I'd like to see come out of all this would be an end to holds on judicial nominations, and an end to supermajority requirements (but a retention of holds in some form) on executive branch nominations. I think that's a program that would do the best job of preserving what the Senate does well. What's more likely, however, is that reform won't happen in a cautious and careful manner; what will happen is that Senators will wait and wait and wait until finally waiting is intolerable, and then they'll pass some arbitrary and, very likely, unworkable set of rules that address whatever is the problem at that point without really thinking it through.

Anyway, for the 112th Congress, in my view it's extremely unlikely that Democrats will act first. The question is going to be whether Republicans are willing to allow all routine nominations to be confirmed without needing 60 votes, and whether they'll allow votes on at least some of the more controversial group. If not, I think there's a fair chance that sometime in 2011 Harry Reid will, as they used to say, go nuclear -- change Senate rules with only a majority vote.

What I think filibuster foes should be pushing now isn't for an early vote. Instead, they need to convince neutral opinion leaders -- the David Broders of the world -- that the problem is a crisis (Polsby definition of a crisis? Everyone agrees that Something  Must Be Done). The way to do that is to start having some overnight sessions; Reid can to use floor time in the lame duck session to demonstrate the extent of the problem. 

Live filibusters can't force the minority to capitulate, but they can make clear that the minority in this case is opposing just for the sake of opposition. A combination of late night sessions and recess appointment threats might move the process along.

So: get everyone in the smaller Democratic caucus on board, demonstrate the problem, continue Rules Committee hearings to settle on a moderate-sounding reform proposal limited to nominations, and see if Republicans are willing to cut a deal -- and if not, press for a vote, perhaps in January but perhaps in mid-session in the wake of a good example of pure obstruction. 

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