The logic behind Senate rules
By Jonathan Bernstein
The two differences that matter between the House and the Senate are the size of the two bodies, and the different types of constituencies that senators and members of the House represent. Senators, especially those in large states, have massively diverse constituencies; members of the House tend to have relatively narrow constituencies.
As a result, members of the House are willing to make a basic bargain: They are willing to give up their (tiny, 1/435) share of influence on most issues in return for extra shares of influence over some of the things that affect their districts the most. Senators, however, are not willing to make that same bargain. At the same time, members of the House in general are more willing to adopt a more hierarchical structure than are senators, just because it's harder for 435 people to work together than it is for 100 to do so.
Senate majority leaders, both as individuals and as the leaders of their party, have always been far weaker than speakers; the committee system has always been weaker in the Senate than in the House. Senators talk a lot about "protecting the rights" of each individual senator, and they really mean it.
Thus the filibuster, which protects both individual senators and small groups of senators; thus the hold, in which single senators can gain individual bargaining power by holding a bill or nomination hostage; thus the rules allowing non-germane amendments and free access of any senator to the floor to offer such amendments. Thus, in the modern Senate, complex unanimous consent agreements on procedure, while the modern House uses procedures drafted by the majority party in the highly partisan Rules Committee.
In short, Senate rules are the way they are because they work well for most Senators.
Or, at least, they did work well. A lot of what we think of as "rules" are a combination of rules and norms; for example, holds are not mandated by Senate rules at all. And norms change over time, as everyone who has seen graphs of the radical increase in filibusters over the past 40 years now realizes.
What's happened is that rules and norms intended to protect individual senators and minority groups of senators have been, essentially, hijacked by one particular minority group, the minority party. I don't think there's anything in the nature and construction of the Senate that makes senators particularly interested in protecting the minority party. It does seem to me that theoretically at least the prospects of reforms that weaken the ability of the minority should be fairly good, if that is all they do . . . but that's going to be tricky to pull off.
Senate rules will change if and when current Senate rules don't work well for most senators. Well, that's an exaggeration; external pressure can make a difference. I expect a lot of Democratic candidates for the Senate this year will campaign on a strong anti-filibuster platform because Democratic activists will demand it, and they will be more likely to take anti-filibuster actions than they would without those campaign promises (assuming that Democrats remain in control of the Senate, of course). But mostly no one votes on obscure procedural stuff, and so external pressure really won't determine the fate of the filibuster.
What will doom the filibuster is if it becomes against the interests of the majority of senators. To some extent, that will be a measure of whether senators think of themselves (or at least act as if they think of themselves) as members of a party, rather than as individual politicians. But I think the larger issue is that even as individual politicians, senators like to take credit for accomplishments, and if they believe that the current Senate rules and norms don't give them enough opportunities to do so, they may well be willing to endorse reform. I think there's a pretty good chance that we've reached that point, in which norms of fully exploiting the rules have produced more obstruction than most individual senators want, and therefore rules reform is fairly likely in the near future.
It is probably a good idea, then, to stop and ask if violations of majority rule in the Senate are also grave violations of democracy, so that's what I'll consider in the next post in this series.
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