U.S. Senate Rules Reform—Why it Matters
From pressing legislation to judicial vacancies to executive branch nominations, nearly every major policy issue in Washington is being affected by actual or threatened obstruction in the U.S. Senate.
- The Promise & Failure of Senate Rules Reform: At the start of this 113th Congress, the Senate debated filibuster and rules reform. Reforms backed by the Fix the Senate Now coalition, and similar to those proposed by reform-minded Senators, such as Senator Jeff Merkley (D-OR) and Senator Tom Udall (D-NM), sought to protect the rights and voices of the minority party in the Senate, while curbing the massive obstruction that has brought so much legislative business to a halt. While the ultimate compromise agreement between Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) stopped short of the meaningful changes we sought, the Fix the Senate Now coalition hoped we would see at least incremental improvements in the functioning of the Senate.
Unfortunately, the Senate’s record from the first four months of the 113th Congress demonstrates that obstruction still reigns and that 60 votes are still needed for almost every order of business in the upper chamber. Unless and until more substantial Senate rules reform advances, we will still be empowering obstructionists at the expense of representative government capable of advancing popular legislation. Since Democrats took control of the upper chamber in 2007, the Senates of the 110th, 111th, and 112th Congress witnessed the three highest totals of filibusters ever recorded. Based on early returns from the 113th Congress, things have not improved.
This is not “politics as usual.” Instead, it is a sustained assault on the basic functionality of the United States Senate:
- Gun Background Check Amendment & Senate Rules: Because of the threat of a filibuster, the U.S. Senate failed to pass the Manchin-Toomey amendment to expand background checks for certain types of gun sales, blocking the amendment by a 54-46 margin in mid-April. Although the amendment received a majority of the Senate’s support, it was subject to the same 60-vote threshold ordinarily reserved for ending filibusters. Requiring 60 votes to pass an amendment on an issue upon which 9-in-10 Americans agree underscored the need for Senate reform and led to outcry from the public, editorial pages, and policymakers. Connecticut Senator Chris Murphy said “This vote has turned me from a proponent [of abolishing the filibuster] into a revolutionary…There’s never been a bigger gap between the American public and a Senate vote.” Beverly Gage, professor of modern American political history at Yale University, wrote in the New York Times: “The voting process on gun control legislation worked, more or less, as it was supposed to work. A majority of senators voted in favor of a measure supported by a majority of the American people. The problem is that this no longer counts for much in the United States Senate…If senators want to thwart the will of a majority of the American voters, they should at least have to work for it.”
- Part of a Larger Strategy of Obstruction: Despite its public salience, the gun background check was merely the most visible example of the continued Republican strategy to subject every piece of legislation to a 60-vote threshold. This not only presents a legislative hurdle for voting at odds with most of the Senate’s long history, but also transforms the legislation itself – because 60 votes is now the de facto standard for a bill’s passage, the threat of a filibuster informs every stage of a legislative life cycle, from its original drafting to its attempted final passage. And thanks to the missed opportunity of filibuster reform, the costs of obstruction remain minimal for those intent on blocking a bill’s final passage.
- Obstruction of Nominees: The 113th Senate is continuing the obstructionist trends of recent years. The 113th Senate has seen the first-ever filibuster of a Secretary of Defense in the Republicans’ obstruction of Chuck Hagel’s nomination; the obstruction of Richard Cordray’s nomination to the Consumer Financial Protection Bureau and Republican threats to obstruct nominees to the National Labor Relations Board (NLRB).
In the judicial arena, Senate Republicans again blocked the nomination of Caitlin Halligan to the DC Circuit Court of Appeals, forcing the nomination’s withdrawal. Currently, four of the eleven seats on the DC Circuit are vacant. As the DC Circuit is the federal appeals court with jurisdiction over environmental regulations, national security issues, and voting rights cases, these vacancies are especially troubling. Overall, President Obama’s nominees for seats on federal courts of appeal “have waited an average of 148 days for their confirmation vote following the committee’s approval, more than four times longer than Mr. Bush’s nominees. For Mr. Obama’s nominees to federal district courts, the average wait time has been 102 days, compared with 35 days for Mr. Bush’s district court choices,” according to a New York Times editorial.
- A Reminder of What Could Have Been? In protesting the nominee for CIA Director, John Brennan, Senator Rand Paul (R-KY) turned heads by engaging in an old-fashioned “talking filibuster” in March, speaking for approximately 13 hours. If the Senate had adopted more substantial reforms in January, Senator Paul’s version of accountable obstruction would be the norm, not the outlier.
- Moving Forward on Reform: Senate Majority Leader Harry Reid (D-NV) has threatened to re-visit rules reform at several points this year, in light of continued obstruction. Additionally, after the failure of the Manchin-Toomey amendment, President Obama and numerous Senate Democrats railed against the dysfunction of the Senate and expressed regret for not pursuing more substantial rules reform in January. President Obama said, “A majority of senators voted yes to protecting more of our citizens with smarter background checks. But by this continuing distortion of Senate rules, a minority was able to block it from moving forward. I'm going to speak plainly and honestly about what's happened here, because the American people are trying to figure out, how can something have 90 percent support and yet not happen?”
However, other observers have called on Senator Reid to do more than just talk about reforming the rules and actually deliver rules reform. For example, Greg Sargent wrote in the Washington Post: “Empty threats make Dems look weak and do nothing to discourage continued GOP obstructionism. If the status quo is really acceptable enough to Democratic leaders to forestall further action, they shouldn’t bother pretending otherwise. If this is the Senate we’re going to have to live with, Dems should just level with their voters on this point. No more feints and hints without real action.”
- Renewed Outside Engagement for Senate Reform: To support the push for Senate reform, dozens of organizations involved in the Fix the Senate Now coalition sent over 2.5 million emails to members on the importance of fixing the Senate, leading to 100,000 phone calls and nearly one million petition signatures delivered to Senate offices during December 2012 and January 2013. Polling at the time also showed the public’s overwhelming support for moving past the unprecedented obstruction of recent years and support for specific reform provisions such as the “talking filibuster” and streamlining the nominations process for judicial nominees.
Now, in light of the unceasing obstruction and the way Senate rules have continued to derail democracy in the 113th Congress, Fix the Senate Now has issued a sign-on letter to Senate leadership signed by over 70 organizations, including 27 organizations new to the Fix the Senate coalition. The letter reads, “We call on you, and all the members of the Senate, to restore fairness and honor to the nomination and confirmation process for executive and judicial nominations, and use the rules of the Senate in a constructive way that fulfills both your constitutional responsibilities and the needs of the American people in these challenging times. Or to reform those rules if a determined minority remains adamant in maintaining a veto over everything that conflicts with their radical philosophy.”
Additionally, the Fix the Senate Now coalition has launched a new petition drive to demonstrate to the Senate that the public remains engaged on the topic of Senate reform. Already, over 100,000 people have signed the petition. The petition notes, “The abuse of the filibuster to undermine policies that the minority cannot defeat through the normal legislative process is harming our democratic institutions and must not continue. We call on you, and all the members of the Senate, to restore fairness and honor to the nomination and confirmation process for executive and judicial nominations, and use the rules of the Senate in a constructive way that fulfills both your constitutional responsibilities and the needs of the American people in these challenging times. Or to reform those rules if a determined minority remains adamant in maintaining a veto over everything that conflicts with their radical philosophy.”