As the U.S. Senate explores the issue of rules reform, several common misconceptions continue to percolate about the content of the proposed reforms and the implications of undertaking such an effort. Below are common concerns and misconceptions, with our analysis of why these criticisms miss the mark.

• The proposed reforms constitute an unprecedented power grab. Just the opposite – abusing filibusters is the power grab. It lets even one or two Senators hold the Senate hostage, and say “Do it our way or we won’t let you take a yes or no vote.” Back in 2005, the Senate Majority Leader, Republican Bill Frist, said the number of filibusters used that year constituted “a power grab of unprecedented proportions.” Since then, abuse of filibusters has skyrocketed, with more than twice as many filibusters. Additionally, Republicans have used the “power grab” terminology to attack virtually every piece of legislation proposed by Democrats in the past two years. Despite the assertions to the contrary, Senate rules reform will make the body more accountable and transparent, which is to the benefit of both parties and all Americans. And with the House controlled by Republicans, both chambers and both parties will have to work together to make any legislative progress regardless of the specific rules of the Senate.
• Pursuing reforms – in process and substance – opens the door for future dangerous reforms by Republicans if they take control of the Senate. If the Republicans can change the rules to their advantage they will do it, no matter what Democrats may do this year. They have plenty of precedent to rely on already. In fact, the Senate has a longstanding tradition of adapting to new challenges by adopting new rules. Majority cloture at the start of a new Congress is not a new invention, and would establish no new precedent. Vice Presidents Nixon, Humphrey and Rockefeller have all issued favorable opinions from the Chair that a new Congress is free to invoke cloture by majority vote.
• Democrats are hypocritical for engaging on this effort after their comments in 2005 about the Republicans’ “nuclear option.” Key distinctions need to be drawn between the 2005 effort for reform and today’s push for rules reform. First, there is a crucial difference between the “nuclear option” and the “constitutional option.” The Constitution protects a new Senate’s right to adopt rules at the beginning of a Congress rather than acquiescing to rules adopted by a Senate in office 35 years earlier. The nuclear option called for ignoring rules after they had been used for six months and hence readopted by the new Congress. This distinction is why, except for the 2005 push, reform efforts from at least 1953 until today have normally been taken at the start of a new Congress. Additionally, the rules reforms being discussed for this new 112^th Congress are substantively modest in nature and, unlike the 2005 proposed reforms, would not lower the threshold of votes needed to overcome a filibuster. Finally, the fact that Democrats face an uphill battle to hold the Senate in 2012 underscores that they are being fair now – they wouldn't want to propose anything now that they wouldn't want to live with if they indeed become the minority party after 2012.
• The proposed reforms would eliminate the filibuster or limit the rights of the minority. Entirely the opposite – the reform package introduced by Senators Tom Udall (D-NM), Tom Harkin (D-IA), and Jeff Merkley (D-OR) center on such common-sense steps as putting an end to anonymous filibuster threats and secret holds and shifting the onus of holding filibusters to those blocking the bill’s advancement. The filibuster will not be eliminated under this package of reforms.
• Republicans’ past use of the filibuster was motivated mostly by Democrats’ “filling the amendment tree.” Recently, some have claimed that Republican obstruction in the Senate has been due to the Democrats’ practice of “filling the amendment tree” – basically, asserting that because Democrats prevented the minority party’s ability to offer substantive changes to bills, they were forced to obstruct and delay. However, as a recent Roll Call study found, Republican Senators were responsible for 3 of every 4 amendments in the 111^th Congress. Additionally, statistics aside, those making the “amendment tree” argument should be heartened by the component of the rules reform package that provides the minority party the ability to offer germane amendments.

Conclusion

The need for substantive rules reform in the U.S. Senate could not be clearer. As the notable political scientist Barbara Sinclair has written, in 1960s, threatened or actual filibusters affected only 8% of major legislation. By the 1980s, threatened or actual filibusters affected 27% of legislation. Since 2006, that number has reached 70%. This means that the vast majority of major legislation‐‐ and many nominations as well‐‐require 60 votes for cloture.

All branches of government suffer under this arrangement. In the judicial branch, for example, we are facing a crisis, with a record high vacancy rate in the judicial system and a record-low confirmation rate of nominees. Even Supreme Court Chief Justice John Roberts recently noted the “acute difficulties” faced by the judiciary by virtue of the Senate obstruction to judicial nominees.

The Senate has an opportunity to improve the democratic process to the benefit of the American people and effective governance. It should act on the opportunity and not let mischaracterizations and common concerns derail this effort.

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