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When It Comes to Reforming Senate Rules . . .
. . . timing is everything.


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Ramesh Ponnuru

There are two sets of objections to the filibuster reform that Senate Democrats, especially those who have never served in the minority, are currently promoting. The first deals with the process by which the Democrats are trying to change the process. Stay with me here: By trying to change the Senate rules by a simple-majority vote, the Democrats are either trying to keep the Republican minority from having any say about the rules of the Senate or trying to force Republicans to negotiate by holding a gun to their heads. Democrats may well retort that Republicans threatened to use a majority vote to change the rules on filibustering judges a few years ago — but they should expect no more cooperation from the Republicans than they gave at that time. Any Senate minority leader would try to rally his troops against a simple-majority rules change, and would almost certainly succeed in doing so.

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The second set of objections concerns the proposed rules themselves (Dan Foster listed the elements of one of several proposed reform packages here). These rules would, as is generally understood, weaken the minority. But what people who have not worked in the Senate may not appreciate is that they would not weaken the minority primarily by changing vote thresholds from super-majority to simple-majority. They would weaken the minority by giving the majority greater control over the Senate calendar.

The minority party in the Senate, by extending debate on some issues, can force the majority to set priorities. The infamous bill to create a government for “native” Hawaiians wasn’t blocked because it lacked a supermajority; it died because Democrats were not willing to devote time to going through an extended debate over it. Note that this type of leverage depends on the minority’s influence over the calendar in general, not just over the scheduling of one bill. So if time for debate on nominations is cut down, as in the proposals, one effect will be to enable the Senate majority to confirm a lot of additional nominees. But another effect will be to enable it to get a lot of other bills through by adding to the majority’s available time.

The proposal to end filibusters on motions to proceed would reduce the minority’s leverage in a different way. The argument for getting rid of this filibuster is that the minority now gets the chance to filibuster twice: once before the Senate takes up a bill for consideration on the floor, and once when the majority wants to move to a vote. But the first-stage filibuster gives the minority leverage to force the majority to let it offer amendments. Without a filibuster on a motion to proceed, the minority can still try to filibuster the final bill — but members of the minority will have to make an up-or-down choice rather than having the chance to modify the legislation. Only when Republicans blocked the motion to proceed on the 9/11-responders bill was Senator Coburn able to force constructive changes of it.

The proposed rules attempt to meet this concern by guaranteeing the minority the right to offer three germane amendments to any bill. But there is less to this concession than meets the eye. Under current rules, amendments have to be germane only in the next-to-last stages of Senate debate. Before that, amendments don’t have to meet any standard of tight relevance to an underlying bill. Thus Republicans, though in the minority, defeated a bill to give the District of Columbia voting representation in the U.S. House by attaching to it an amendment giving D.C. residents gun rights as well — at which point the Democrats pulled the plug on the bill. The proposed rules would in practice mean that such amendments would be out of bounds at all times. (The minority is guaranteed only germane amendments, and without the chance to filibuster motions to proceed no longer has much leverage to insist on anything else.)

Note, meanwhile, that the majority would face no such constraint of germaneness. Senate Democrats passed a hate-crimes law by tacking it on to a defense bill.

A reasonable case can be made that the majority should have more power to speed its agenda to passage, albeit one that progressives will find more naturally congenial than conservatives. And some of the proposed rules, such as the end to “secret holds” (which are often not all that secret in practice), seem harmless. But don’t underestimate how much power these proposed rules, taken together, would give to the majority. As the Senate’s president might say, it’s a big deal.

— Ramesh Ponnuru is a senior editor of National Review.



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