Making a better Senate: Reduce filibustering and vote on amendments

Although some states are still counting votes, it is clear that the Democrats will be the majority party in the U.S. House while Republicans will continue to hold a majority of Senate seats. This period of divided control provides a low-stakes opportunity for senators to reevaluate how their chamber functions. This post proposes reforms to make it more difficult for senators to filibuster, and to ensure a fair and balanced debate on major legislation.

Reforming the Senate Filibuster

To the extent that people think about the rules of the Senate, they understandably focus on the ability of a minority to filibuster. Filibustering has had a tremendous indirect influence on the current (115^th) Congress. The Senate Republicans did not want to limit legislative filibustering nor run the gauntlet of bringing up a partisan agenda against an energized minority party, so they focused on items they could pass by simple majority: budget legislation (the path for health care and tax legislation), overturning Obama-era regulations, and executive and judicial nominations. By doing so, the Senate Republicans have avoided a central challenge facing the Senate: re-balancing the right of the majority to act with the right of the minority to deliberate and force compromise.

In previous research and blog posts, I have explained why senators have long valued the ability to filibuster. Used selectively, filibustering moderates policy outcomes, constrains majority parties, empowers the minority party to bargain for fair and open floor debates, and enables individual senators to exercise influence on issues they care about intensely. My research shows, however, that filibustering used to require great effort but over the last five decades it has become a low-cost right of any senator to block legislation without making the slightest effort on the Senate floor.

Opponents of the filibuster typically seek to lower the threshold for cutting off debate using the Senate’s cloture rule. In 1975, the threshold was lowered from two-thirds of senators voting to three-fifths of the Senate membership, which still effectively means that some members of both parties must support cloture in order for the motion to pass. And the rule currently requires sixty affirmative votes for cloture, so absent senators essentially count as “no” votes. Notably, this rule change had no effect on the number of filibusters, because by 1975 it was already very easy to threaten a filibuster and changing the threshold did not make filibusters any more difficult. If anything, lowering the threshold encourages more filibustering by motivating senators to make up for a decreased chance of success on any given vote by blocking a wider range of issues and forcing even more cloture votes. This has been the pattern on nomination votes, where the imposition of simple-majority cloture in 2013 has led to filibusters and cloture votes on a wider range of nominations.

In particular, reforming the cloture threshold by itself leaves in place the time lags built into Senate Rule 22. Senators seeking cloture must file a petition and then wait for a vote two days later. If the Senate votes for cloture, each senator is limited to one hour of debate and the entire chamber is limited to thirty hours of deliberation. This debate time is typically divided between the two parties and the minority party “uses” all fifteen hours, even if that means the chamber sits in silence during a quorum call. Putting this all together: by threatening to filibuster, any senator (enabled by a party leader) can force a two-day delay as a cloture petition waits for a vote, compel the rest of the Senate to muster 60 votes for cloture, and then consume at least fifteen hours of “debate” time.

I propose two reforms to re-balance the filibuster calculus:

1. In order to keep a filibuster alive, senators must muster 41 votes against cloture.
2. Once cloture has been invoked, the deliberation period terminates when no one is speaking or offering an amendment and the chamber is not voting.

Taken together, these reforms would leave the three-fifths cloture threshold in place, but make filibustering a costly activity again. Senators would have to organize and take time from their schedules to be on the floor of the Senate. This could include weekend sessions if cloture petitions are filed on Thursday or Friday.

And, both these changes can be made by a simple majority to re-interpret the meaning and enforcement of the cloture rule. It would be preferable for senators to negotiate a bipartisan package of rules changes, but if negotiations break down the majority can achieve its reforms by other means.

The Senate’s Agenda-Setting Challenge

However, the Senate’s struggles extend beyond filibustering. The more fundamental challenge senators face is setting the chamber’s agenda: deciding which bills to discuss and which amendments senators may offer. While these are intensely political questions, senators of both parties suffer when they cannot decide how to decide, and when the “solution” is to ensure that senators cannot offer controversial amendments for a simple majority vote.

There are (at least) three components of the Senate’s agenda-setting problem.

1. Demand for floor time exceeds the amount of available time. Every senator has a large staff armed with computers, and there are hundreds of lobbyists willing to help them come up with amendments to propose. Notably, senators of both parties may push for votes on amendments unrelated to the bill on the floor before cloture is invoked, such as a gun control proposal on a farm bill. The time of the Senate, however, is constrained by the constitutional two-year time limit for each Congress, and by the desire of senators to limit the hours of the chamber to free up time to raise money and visit their home states. The Senate cannot vote on every amendment, and thus needs to resolve its tragedy of the commons by deciding which amendments deserve floor consideration and which do not.
2. The choices posed by roll call votes on amendments provide electoral costs and benefits. It is not simply that senators do not want to take the “wrong” position for their state; it is that some amendments do not have a “right” position electorally speaking. This can arise when an amendment forces a choice between two core constituency groups, or a party-aligned group vs. majority public opinion (e.g. Republicans on gun control). Senators may prefer roll call votes that force members of the other party to make difficult choices while trying to avoid such roll calls themselves. Generally, senators who represent states where their own party is dominant will find that the benefits of holding roll calls exceed the risks, while senators who represent closely divided states or whose home state typically votes for the opposing party incur greater risk from an open amending process.
3. The floor agenda is set by unanimous consent agreements negotiated by party leaders. On major legislation, the Senate majority leader now blocks other members’ access to floor votes on their proposals (a process known as “filling the tree”) and then begins bargaining with the minority leader to decide which amendments come up, how they will be debated, and whether they need a simple majority or a three-fifths vote to pass. Any agreement between leaders must be cleared by all 100 senators. This screening process slows the Senate and is biased against holding meaningful votes on controversial issues. It is no surprise that it stalls; it is surprising when this system achieves anything at all.

Earlier this year, the Senate “debated” immigration policy for three days in mid-February. After two days of haggling over the terms of debate, the Senate held cloture votes on four amendments and then gave up when no option received the requisite 60 votes. How does that compare to a situation where senators can offer amendments without this screening process? The Senate occasionally holds “vote-a-ramas” in which any senator can obtain a roll call vote on an amendment (or a directly related procedural question), and this open process is required for budgetary legislation. Most recently, the Senate debated a budget resolution on October 18-19, 2017, and voted on 25 amendments in two days. Senators can vote more often, and can vote on controversial issues, but the current highly-centralized process prevents it.

Reforming the Senate Floor Process

How can senators get out of their current morass? Below is a set of proposals that will help the Senate be both more deliberative and more efficient, to consider a wide range of issues while having focused policy discussions.

1. Make the motion to proceed “non-debatable.” The motion to proceed is the Senate’s basic agenda-setting motion, and by custom the majority leader has first priority in making these motions (among others). Since the 1970s, majority leaders have proposed making these motions immune to a filibuster, arguing that it does not make since that opponents of a bill can filibuster both the bill and the motion to make it the main topic of discussion. My proposal is different, however, because it is linked to a pro-minority reform…
2. Allow the minority party leader (or some other opponent of the proposed bill) to make a substitute motion to proceed, with one hour of debate. Again, a major reason the floor process stalls—even on uncontroversial bills—is that senators want to vote on non-germane issues. This reform allows senators to bring up these alternative issues at the agenda-setting stage, and frames the debate as competing priorities: of these two bills, which is the more important problem to tackle right now? This rule would institutionalize one of the key distinctions between the U.S. House and Senate: the Senate is a chamber that debates a wide range of issues, and not just the topics the majority party wants to emphasize.
3. Once the Senate selects a bill for floor debate, all amendments must be germane to the bill. It is no longer feasible to debate everything on anything. Adopting a germaneness rule will help senators to focus on the task of perfecting legislation instead of grandstanding.
4. Adopt as a standing order a default floor agreement with decentralized amendment selection. Current floor negotiations start with a blank sheet of paper and party leaders negotiate the details, so a highly decentralized chamber becomes subject to a centralized process. Instead, the Senate could begin debating and voting immediately on a bill using a default floor agreement that lays out a fair process. I leave the fine details to senators themselves, but here are some options:

• Floor managers begin the amending process by offering substitute amendment proposals. This would avoid situations in which the Senate debates and amends a bill, and then nullifies adopted amendments by approving a substitute version of the bill that omits adopted amendments.

• Floor managers retain the ability to offer amendments throughout the debate process.

• A fixed number of amendments are allocated to senators chosen at random (or equally divided between parties, with random selection within parties) from those who have entered the amendment lottery for a bill. Selected senators would be allowed to transfer their right to offer amendments, or could offer amendments on behalf of another.

The use of random selection is unorthodox but represents an alternative approach to the Senate’s tragedy of the commons. It gives individual senators property rights: they “own” the right to offer amendments. Ideally, this puts pressure on the lottery winners to propose amendments that get adopted, and creates a market for favor-trading between senators. As variations, floor managers could be allowed to offer non-debatable motions to increase the number of amendments on the bill, and the lottery could be weighted to increase the odds for senators who have not offered as many amendments in the past, and for senators whose past amendments have attracted bipartisan support.

In conclusion, the Senate has deep-rooted challenges setting its agenda and passing legislation efficiently. While the Senate can be proud of its tradition of open debate and decentralized power, it is difficult to be proud of the Senate’s legislative record over the last decade, particularly since the quality of Senate deliberation has declined at the same time. This column proposes reforms to maintain the Senate filibuster but increase the costs of obstruction, and to ensure an open debate on a wide range of issues and focused debates on specific bills.