Originally published on May 9, 2019, at TheHill.com
The U.S. Senate is moving with accelerating speed down a slippery slope of rules changes, each time thinking the next tweak to the filibuster will stop the slide. But after three detonations of the “nuclear option” to reduce debate time, the Senate is no closer to ending “obstructionism” than before. Instead, the Senate should try the opposite approach: Spend more time talking (and listening), not less.
Sen. Richard Lugar, (R-Ind.) who died just over a week ago, urged as much in his farewell speech to the Senate more than six years ago, after being defeated by a Tea Party opponent in a primary. “Too often, we have failed to listen to one another and question whether the orthodox views being promulgated by our parties make strategic sense for America’s future,” he warned.
Both Democrats and Republicans decry “obstructionism” when they are the frustrated majority. It’s a synonym for “we’re in charge and we’re not getting enough of what we want.” The majority’s “obstructionism” is the minority’s “rights,” which evaporate once they regain the majority. These attitudes reflect an impatience with two fundamental values that undergird our democratic political system: Respect for the legitimacy of one’s political opposition and institutional restraint. The process of cooperating — or negotiating and compromising — to craft mutually acceptable solutions is the way these principles are expressed in Congress.
There’s also a practical reason to care about not only what Congress decides, but how. The Lugar Center, established by the Senator to promote collaboration in Congress, publishes the Bipartisan Index with Georgetown University. It is a nonpartisan ranking of how often members of Congress work across party lines based on how often they co-sponsor legislation by members of the other party.
Research by the Lugar Center and the Center for Effective Lawmaking in Charlottesville found that “bipartisan Congressmen were more successful at advancing their legislative agendas than relatively partisan members of Congress.” They also discovered that “ideologically extreme congressmen also proved more effective when having bipartisan support” for a bill.
Using a simple majority to decide important questions in the Senate is far less democratic than in the House of Representatives. Because the Constitution did not establish the Senate as a representative body like the House, apportioned according to population, a majority of 51 senators does not come close to representing 51 percent of Americans.
At the time of the first Congress, the population gap was 13-to-1, with Virginia (747,610) as the largest state and Delaware (59,094) the smallest. In 2010 the ratio had escalated to 66-to-1 between California (37,253,956) and Wyoming (563,826). Because of “winner-take-all” elections, a state may have House members from both parties, but two senators from only one party, further skewing representation.
Differences in the norms and parliamentary procedures between the two chambers reflect this fundamental distinction. A core principle underlying the Senate’s parliamentary procedures is “unlimited debate,” or allowing time to hear every senator for as long as she or he wishes to speak. The Senate has very few written rules; much relies on precedent. Hundreds of decisions are made every year by “unanimous consent,” where something passes without a vote if no senator objects. This practice also reflects the right of any senator to be heard in debate.
Limitations on debate must be specifically adopted by the Senate. That’s why “cloture” was invented a century ago. From 1806 to 1917, senators could talk on the Senate floor as long as they wished, and there was no parliamentary rule to make them stop. Of course, there were a lot fewer senators, but the general understanding, or norm, held that at some point people were talked out, a bill would take shape, and a majority vote would decide the matter.
During some of the most polarized times in our history, including the antebellum, post-Civil War, and Gilded Age periods, the Senate did its work (imperfectly and sometimes badly) without a mechanism to end debate.
But the norm started to fray, and “unlimited debate” gradually became a tool for indefinite delay. Tensions boiled over in 1917 and the Senate passed Rule 22, or “cloture.” This new process could break the logjam when an overwhelming number of senators — two-thirds of those voting — were ready to cut off debate.
Opponents of the 1917 proposal included the highly respected Sen. Robert La Follette, who said, “I shall stand while I am a member of this body against any cloture that denies free and unlimited debate.”
Sen, George Norris said he had “always opposed any change of the rule that would give any majority, no matter how large, the right absolutely to close debate.” However, he ultimately supported the 1917 cloture rule as a “reasonable proposition,” largely because it required a two-thirds vote to invoke cloture, and after that vote, “every senator has a right to speak one hour on the bill and on the amendments.” Those barriers have since been greatly eroded.
During the following century, the use of “filibusters” to delay or block a vote steadily increased. In 1975, the Senate debated a range of proposals, including simple majority cloture, and eventually compromised on three-fifths of the total Senate, or 60 of 100 Members. In that case, it showed institutional restraint by passing this change according to the rule that required a two-thirds majority to pass changes in Senate rules.
Even that institutional norm fell away in 2013. An arcane series of procedural steps, which parliamentary experts had known for years could be an end-run around the two-thirds requirement was used by one party to lower the cloture threshold again, to a majority (51 if all senators vote) for certain nominations.
This procedure was called the “nuclear option” because it blasted away long-held respect for the two-thirds requirement to pass rules changes. Once detonated, the other party saw little reason once they took power not to use the “nuclear option.” In 2017, they pulled the trigger to get what they wanted — quick confirmation of all nominations, including lifetime Supreme Court appointments, with or without any minority votes. What’s left is supermajority cloture on legislation, which a frustrated, impatient Senate majority could eliminate on short notice, just as it did on nominations.
George Washington saw the Senate as a “cooling saucer” where diverse and conflicting political passions could be heard and reconciled in the interest of the entire country. He understood that the more upset, the more dug in, the more invested people are in their positions, the longer it takes to hear them out, but that’s what our political institutions are for. Instead of reflecting chaos and division, Congress could model a way through it.
Continuing to weaken the thresholds for cloture so that 51 Senators can more quickly push through their preferred nominees or policies fails that test. The Senate needs to stop focusing on ending filibusters and instead find new ways to fulfill George Washington’s ideal. It could start by encouraging members to talk with each other more, not less.