Rules as constraints vs. rules as leverage

One reason for the Senate’s present dysfunction is that its members interpret incorrectly how its rules operate in practice.

Take, for example, two recent op-eds written by the Senate’s former majority leader, Harry Reid, D-Nev., and its current majority leader, Mitch McConnell, R-Ky. In one, Reid argues that Democrats should scrap the filibuster if they are in a position to do so after the 2020 elections. In the other, McConnell argues that abandoning the filibuster over Republican objections would be a radical step that Democrats will eventually regret.

Implicit in both arguments is a shared understanding of how the Senate’s rules operate in practice. Specifically, both Reid and McConnell view the rules as a constraint on senators’ behavior. In Reid’s case, Democrats should change the rules – over Republicans’ objections if necessary – because they no longer prevent senators in the minority from obstructing the majority. For McConnell, Democrats should not change the rules because they act as a constraint on Republicans when they are in the majority.

However, the Senate’s present inaction suggests that its rules are not a constraint on either the majority or the minority. This inaction is because neither the majority nor the minority is using the Senate’s rules to achieve its goals in the institution. We can attribute the Senate’s dysfunction instead to the fact that its members no longer use the rules as leverage.

Rules as Constraints

The rules-as-constraints view prevalent inside the Senate is premised on senators’ belief that rules make it possible for them to legislate by limiting the behavior of their colleagues. Of course, Article I, section 5, clause 2 of the Constitution stipulates that “each House [of Congress] may determine the Rules of its Proceedings.” For that reason, the rules cannot technically constrain a simple majority in the Senate. A simple majority can change the rules whenever it chooses to do so.

The ability of a simple majority to change the rules does not mean that it has been historically acceptable to do so. The Senate’s Standing Rules have long included a provision (i.e., Rule XXII) requiring a three-fifths majority to end a filibuster and an even greater two-thirds majority to end debate on proposals to change those rules. While there has been some erosion in support among senators for these requirements in recent years when it comes to presidential nominations, experience suggests that the rules continue to hold normative value for senators when it comes to legislation. According to one explanation, Senate majorities can change the rules whenever they want but are compelled not to by the costs associated with doing so.

Rules as Leverage

While costs are an essential element in legislative politics more generally, the Senate’s rules operate primarily as a source of leverage for senators to achieve their goals inside the institution. Senators have voluntarily limited their actions in the past per the dictates specified in the rules because they derive benefits from engaging in rule-bound behavior. In short, rules don’t constrain senators. They empower them.

When senators commit to following the rules, they create possibilities that did not exist previously. In doing so, senators reinforce the inter-personal space created between themselves wherever they gather to negotiate – in committee rooms or on the Senate floor. Senators’ commitment to follow the rules creates possibilities in the future that do not exist in the present. According to the political theorist Hannah Arendt, the ability of legislators to make and keep promises in the form of rules and norms creates “islands of predictability” and “goalposts of reliability” in legislative politics.

In the Senate, reliable rules make it possible for senators to form expectations about what will happen in the future. By extension, they make it easier for them to accept suboptimal outcomes in the present (i.e., to compromise). The rules also extend senators’ leverage into the future, thereby increasing their potential influence to impact outcomes over time (assuming, of course, that senators use that leverage effectively).

Empower the Senate by Empowering Senators

McConnell is correct when he writes, “America needs the Senate to be the Senate.” But he misses the fact that the only way to do that is to let senators be senators. Instead of trying to limit senators’ behavior, the Senate’s leaders should try to empower them by strengthening their ability to participate in the legislative process according to the rules.

To the extent that the Senate’s present trajectory makes it harder for senators to use the rules as leverage to act in the legislative process, it makes achieving compromise harder and, as a result, makes gridlock more likely.