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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.

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 editor  |  June 1, 2010; 4:45 PM ET
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Next: Reconciliation


James Fallows had a fantastic post a few days ago outlining how Mitch McConnell is holding up tons of Obama Admin appointees. These tend to be mid-level appointments, but crucial to the reasonable workings of government. It fits McConnell's objectives to obstruct in this way: government continues to do more poorly than citizens expect, thus seeming to confirm the right-wing trope that government is the problem.

But as fallows points out, this has national consequences. Fallows quotes Sen. Tom Harkin at length, and I excerpt here:

"[Does the GOP] care whether we have enough people in the Peace Corps to run the Peace Corps? They do not care. Do they care whether we have an Ambassador to the Slovak Republic? They do not care. Do they care if we have members on the TVA, the Tennessee Valley Authority, board of directors? Obviously not. They have been holding up these nominees for a long time. This is not the first time they have held up these nominees."

Posted by: RalfW | June 1, 2010 5:19 PM | Report abuse

Sadly, the President and his advisers are deferential to a fault. The system of anonymous holds is like the old blackball system for admitting members to a men's club. The President should have told the Senate when the holds started to appear, "I need my team in place working for the people. Approve them or disapprove them in three months, but if you can't produce a vote, I will appointment them with recess appointments." It would have been great politics, and it would have broken the anonymous holds system. The main product of elected legislators is votes. Between holds, filibusters, and vacations, the Senate's productivity is astonishingly low. That has to change.

Posted by: VinceInSeattle | June 2, 2010 1:07 AM | Report abuse

This is why I think the Dems should filibuster everything next time they're the minority. Not as revenge, and not because I like the filibuster, but because thus far, Republicans have used it FAR (even the height of Dem use was only half of what the Republicans have done since the 2008 election) more than Dems, and therefore, only one party has a good idea of how the filibuster "doesn't work for them." Until the Republicans are made to understand this, it'll never change. This is one issue that really does require bipartisanship.

I'm sure it'd be spun as a hypocritical act, but I think if the Dems made clear that they were doing it to illustrate a point to the other caucus so the rules can change, maybe they could get away with it politically.

Posted by: roquelaure_79 | June 2, 2010 11:15 AM | Report abuse

This analysis, from the perspective of the interests of senators, is definitely the real story. But it's important to also disperse the myths about the legal issues.

First off, the filibuster was not intended by the founders. The Federalist papers speak against supermajority requirements except in special cases. The filibuster did not exist until the 19th century, and throughout that entire century, one which you may recall included an actual civil war, there were fewer than 30 filibusters - an amount we get about every 3 months nowadays.

Second, there is no legal barrier to 51 members of the senate (including the VP, who is technically a member) changing the rules. The principle of no-prior-restraint is well established, so past decisions by the senate cannot reduce its current ability to act. This is clear; it's been explicitly ratified by people from Richard Nixon to Al Franken.

So what do we make of current senate rules? Rule 5 gives no chance for a start-of-session rules change, and rule (catch?) 22 allows just 34 senators to filibuster any rules change. Clearly, one or both of these rules must be unconstitutional prior restraint. If both are unconstitutional, midsession 51-vote rules changes are OK; if just rule 5 is, 51-vote rules changes must be at the start of a year.

But who decides how to interpret this constitutional question? Not the supreme court; it's just a 51-vote majority of the senate. So, in practice, they can change the rules when they want to.

Obama has accomplished several minor miracles in getting things through the senate. But the business of the nation should not require miracles. Obama has a duty to speak out in favor of changing the filibuster, with due deference for the fact that it's the Senate's decision of course.

Posted by: homunq | June 2, 2010 11:53 AM | Report abuse

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