The Self-Limiting Senate

by Eden Iscil

In a political system defined by its actors’ constant desire for more power, the American Senate continues to confuse the public as it keeps restricting its own capabilities. The U.S. Senate is one of the most powerful governing bodies on earth, with jurisdiction over the world’s largest economy, an unrivaled military force, and over 300 million citizens. And yet, congressional leaders must ask a career hill staffer for permission to raise the minimum wage, a request she has infamously denied.

A raise for millions of Americans (along with dozens of overwhelmingly popular policies such as democracy reform and gun control) can be killed by one parliamentarian saying “no” because of a self-imposed rule related to the Senate filibuster. The U.S. Constitution allows both chambers of Congress to pass legislation with a simple majority of votes (50% + 1), of which the House of Representatives takes full advantage. On the other hand, the Senate allows for unlimited debate, which must conclude before the body may vote on the underlying bill. Should opponents of a bill never stop talking, also known as a filibuster, the legislation will die unless the Senate agrees to end debate and proceed to a floor vote, a motion on which senators have willingly placed a 60% vote threshold. This threshold effectively means that legislation cannot pass the Senate unless it has the support of 60 senators—with few exceptions.

One such exception is a process called budget reconciliation, which was intended for the approval of budget-related legislation with a simple majority. Instead, Congressional leadership uses this process to pass initiatives (such as COVID-19 relief under President Biden, tax cuts under President Trump, and part of the Affordable Care Act under President Obama), knowing that they cannot reach the 60 votes normally required in the Senate.

Unfortunately, this method of passage restricts the types of policy that senators can include in reconciliation bills, which is where the parliamentarian comes in. This Senate staffer tells senators which pieces of the legislation they can and cannot pass through reconciliation. If this sounds complicated and convoluted—that’s because it is. Senators choose to use an inefficient process governed by strict substance requirements, subject to the whims of a parliamentarian, rather than removing the 60% vote threshold to pass legislation through the traditional manner.

To add to this madness, Senate Majority Leader Chuck Schumer has asked the parliamentarian to allow him to pass another reconciliation bill, as reconciliation is typically only done once a year at a maximum. This was never the intended function of Congress, the budget reconciliation process, or really the Congressional staff. No one designing a legislature would have accepted this as the normal procedure, since the American public chooses senators to make policy decisions, not unelected parliamentarians. Additionally, a Senate majority leader has no constitutional need to ask for permission to pass legislation (as long as it’s within Congress’s constitutional authority, of course) since Senate staff exists to assist the senators, not the other way around.

Instead of kindly requesting permission from an unelected official to pass two major pieces of legislation a year, a majority in Congress can pass an unrestricted number of bills if it chooses to do so. U.S. policy should only be limited by the wills of the public and the governing majorities in Congress—not arcane rules few understand.

Supporters of the 60-vote requirement claim in the abstract that it creates bipartisanship, produces better quality legislation, and allows for deliberation. With this glowing review, one would think that the U.S. Congress would be a shining example of legislative productivity. Ask almost any American, including politicians in D.C., and they will likely tell you this is not how governing actually works on Capitol Hill (an institution whose approval ratings have been in the red for almost two decades).

Additionally, proponents of the 60% threshold often state that it is integral to the foundation of the Senate. This is false, considering the modern filibuster developed by mistake, and the Senate did not regularly practice its use as a minority veto until the 20th Century, where it has since jumped to record levels. In fact, James Madison (a key architect of the federal government) specifically rejected the requirement of a supermajority vote to pass legislation in Federalist Paper No. 58, believing that giving the minority a veto over the popularly elected majority would be undemocratic.

While the death of the $15 minimum wage has been one of the most publicized examples, it has not been the only policy setback attributed to Senate procedure, nor will it be the last. Unless a majority of senators agree to exercise their full power, many issues (including campaign promises) will go unaddressed. Immigration reform, gun control, and D.C. statehood are all unlikely to survive the parliamentarian’s scrutiny if included in a future budget reconciliation package. Even if much of the majority’s agenda could be passed through budget reconciliation, it appears the Senate can only use that vehicle for legislation up to three more times before the 2022 midterms, where Democrats may lose their majorities in one or both chambers of Congress.

With uncertainty over how long Democrats may retain unified control of the government, there is no time to waste. In a political era known for its toxic partisanship, substandard bills, and restrictive legislative process tightly controlled by leadership, to argue that complex Senate rules somehow produce the opposite is nonsensical and far removed from reality. If the Senate wanted to, it could revive its normal legislating capabilities tomorrow. A rules change only requires a simple majority vote, and to produce meaningful change in a country desperately in need of it, the Senate must do exactly that. Instead, too many senators enjoy getting away with doing nothing.

Featured image: Photo by Andy Feliciotti on Unsplash

The Public Purpose

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