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Guidelines for Senate reform

By Jonathan Bernstein

The argument so far has been that majoritarian reform is neither required on democratic grounds nor likely, given the inherent structure of the Senate. At the same time, there's no reason that some reform isn't possible, and perhaps a good thing. The urgency of reform, I think, depends on just how broken the system is. In this post, I break down the question of reform across three things the Senate does: confirming executive branch nominations; confirming judges; and legislating.

Before I get to that, however, a general word about reform. We've now had more than a year of unified party government, with the majority party having either just barely or falling just short of 60 votes in the Senate. It's natural to propose reforms appropriate to that situation, but that's a danger ... any reforms that are enacted will have to work when the president's party has 62 senators, or 55 senators, or 51, or 49, or 45. Remember too that 59 senators doesn't mean that 59 percent of the nation supports the Democrats, much less any particular proposal in the Democratic platform. After all, if every single Senate election was a narrow victory for one party, that party could control all 100 Senate seats despite winning only 51 percent of the national vote. That said ...

Executive branch nominations

It seems to me that this is the part of the process that is clearly broken, although not all of that is the fault of minority party obstruction; I think that the Constitution does put Congress as co-equally responsible for the actions of executive branch agencies and departments, and so I'm all for the Senate using confirmation as a part of their oversight leverage. That includes, in my view, the ability of individual senators to bargain for some specific interest of their state by threatening to slow a nomination. However, the executive branch has to be able to function, and I do believe that the president should be given the nominees he asks for. That is, these appointments are best seen as agents of the president, and so it's mainly up to him who he wants to represent him. In other words, the Senate and senators should extract whatever commitments they can get, and then confirm any qualified nominee.

Judicial branch nominations

A much different kettle of fish. These are lifetime appointments, and no one really sees them as agents of the president after they take the bench. It seems perfectly reasonable to me if, for example, the judges that Obama selects in 2011 will differ depending on whether the Democrats have 60, 55, 51, 49 or 45 seats in the Senate. Unlike executive branch nominations, in which the president should get his person but negotiate over policy, in judicial branch nominations, one obviously cannot ask for policy commitments, and so it is entirely reasonable for opponents of the president to oppose his selections -- and to bargain with him for compromise candidates. I'd prefer norms that allow district court nominees to move easily through the Senate, but fights (and bargaining) over the policy-makers at the Appeals Court level, and of course on Supreme Court nominations, seem perfectly appropriate to me. Nor does a high threshold for confirmation bother me; once they're on, they're on, and one can imagine the senators in the minority acting on behalf of potential future majorities that would never have supported a particular nominee. If liberals are stuck with Scalia despite the 2006 and 2008 elections, then I have no problem with the Senate maintaining a high bar for confirming judges.


It is far from clear to me that current Senate procedures are "broken" with respect to legislating. After all, the current Congress has been very productive. There's really no way of knowing, meanwhile, what would have happened had the Democrats had, say, 55 seats -- a clear majority, but far from the 60 needed for cloture. Would the 45 Republicans simply have shut the place down? Or would the Dems compromise, and pass a bill acceptable to the new 60th most liberal member, whoever that was. We don't know! On the one hand, it seemed to take all 60 Democrats to pass health-care reform; the most moderate Republicans didn't seem, at the end, even remotely willing to find common ground. On the other hand, the stimulus passed with all 58 (at the time) Democrats, plus three Republicans; the banking bill just passed with (on the key cloture vote) 57 of the 59 Democrats, plus three Republicans. So it's just not true that all Republicans are blockading all legislation. What we can say is that at the very least, the 60 votes needed for cloture moves the decision point in the Senate, and that certainly does affect legislation. Moreover, there's no particular justification for 60 (and not 52, 55 or 67), even if one wants to protect minorities. I know, this leaves me sadly ambivalent on filibuster reform (bad blogger: Must have strong, preferably extreme, position!).

Some general thoughts

The strongest justification, to me, for supermajority requirements in the Senate is on the grounds of intensity. Unfortunately, the filibuster as it is currently practiced is a terrible measure of intensity. The minority party uses it on everything, and they cannot be equally intense on all topics. So as I look at reform proposals, I'll pay attention to any that can reflect minority intensity somewhat more accurately. I'd like to restore the norm that filibusters were only used in extreme cases ... but that genii is out of the bottle and isn't going back. Note that majority party intensity is registered, in large part, by the act of prioritizing bills; the Democrats in 2009 acted on health-care reform at least in part because they felt more strongly about it than about other issues.

Beyond that, I'm going to be especially interested in how reform proposals deal with the three different tasks outlined above. And I'm going to think about how proposals would work in cases with a solid Senate majority, a slim majority, and in cases of divided government.

I've also so far talked mainly about the supermajority requirement, and to some extent about the way individual senators can use holds to influence events, and not very much about the ability of the minority to obstruct without having 40 votes by chewing up scarce floor time.

One more thing that I alluded to above, but I should make clear: To the extent that the United States has actually moved to a "responsible parties" model, in which the two major parties oppose each other on all issues, and can command strict party discipline in Congress, then all that matters is party strength -- all that matters is how many votes are needed to win and the number of seats a party has. In that case, in which one party is going to win and the other will lose, then I'd agree with those who say that given those choices, the majority party should normally win, even if it's a slim majority. If, however, marginal senators are willing to compromise, then the case for a majority-rules Senate is much weaker. In my view, the evidence is mixed about what we actually have. I should add that I'd prefer institutional design that yields strong but not monolithic political parties; parties are, in my view, critical components of a real democratic system, but overly hierarchical and monolithic parties are not very democratic (because they yield majoritarian results, with all the problems discussed in the previous post in this series). And I do think that party strength and party unity are not the same thing, and not necessarily even correlated.

So with that, on to look at some of the reform proposals out there.

-- Jonathan Bernstein blogs about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.

By Washington Post Editors  |  June 2, 2010; 12:38 PM ET
Categories:  Congress , Senate  
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"...the Senate and senators should extract whatever commitments they can get, and then confirm any qualified nominee"

But the reason senators can extract concessions is because they aren't pre-committed to confirming anyone qualified.

Posted by: MrDo64 | June 2, 2010 1:28 PM | Report abuse

I take the position that the filibuster is a legitimate tool for the minority to use.

However, there should be a cost to using it. It should not be so clean. It should be embarrassing, so that when the next election comes around, the majority can go to the public and make a clear case that the minority has been obstructing their will. The minority must then defend their actions.

If the public decides that the majority's policies were so egregious that wasting the Senate's time was a fair price to pay to block them, then the minority will weather the storm. But the burden of proof should lie with the minority as they have to justify their obstructionism. If they cannot do so, then the majority should be able to paint them as obstructionists.

As it stands, the filibuster has become too easy to use. But the changes required to make it more costly to use (in terms of public opinion) would be relatively minor when compared with abolishing the filibuster altogether.

It is worth noting that under the regime I describe above, on Health Care Reform and maybe even the Stimulus, the GOP would have been quite able to defend their filibuster to the public. But routine filibusters on other issues, especially those which subsequently passed with large majorities, should have exacted a higher price.

Posted by: Unwisdom | June 2, 2010 2:31 PM | Report abuse

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