(Editor's Note: This piece first appeared in Law and Liberty on May 14, 2018.)
Americans believe that their government isn’t working. And they have good reason to do so. At present, Democrats and Republicans can’t find common ground on issues like healthcare reform, government spending, and immigration. Gridlock is the result.
Most observers blame the Senate for this dysfunction. Unlike in the House, the minority there can influence policy outcomes in several ways. Chief among these is the fact that the Senate’s rules permit a minority of its members to filibuster (i.e. block) legislation they oppose.
In theory, polarization makes it harder for senators to compromise by increasing the distance between the two parties. Senators agree on less and less as that gap widens and, as a consequence, the majority goes to greater lengths to avoid negotiating with the minority. Gridlock results when the gap becomes unbridgeable. At that point, the majority is left with no other choice but to eliminate the minority’s ability to obstruct if it wants to pass its agenda.
But in reality, the problem underlying Congress’s present dysfunction is a lack of effort, not polarization. That is, the Senate is mired in gridlock because its members are unwilling to expend the effort required to legislate successfully in a polarized environment.
Suggesting that the solution to the Senate’s inability to legislate is for its members to try harder sounds trite. But that doesn’t make the diagnosis any less accurate. Indeed, it’s the only explanation that can fully account for the Senate’s current malaise from the perspective of both the minority and the majority.
Consider how the Senate typically deals with controversial bills today. Instead of a deliberative and unpredictable process in which its members debate competing ideas, party leaders direct a stage-managed process designed explicitly to create the appearance of genuine deliberation on the Senate floor without its unpredictability. Doing so may make life easier for members in both parties. But that convenience also makes the minority more powerful than it would otherwise be if the Senate adhered to its rules. And, paradoxically, it also makes it easier for the leadership of both parties to limit the ability of individual senators in the minority from participating in the legislative process in the first place.
The politics of effort encapsulates perfectly the recent immigration debate. Earlier this year, Senate Majority Leader Mitch McConnell, R-Ky., committed to bring an immigration bill to the Senate floor and to allow an open amendment process in exchange for Democratic support for a short-term continuing resolution to fund the government.
In the end, that debate never materialized. Instead, McConnell, with the cooperation of Minority Leader Chuck Schumer, D-NY., blocked rank-and-file senators from offering amendments unless they first agreed to a higher vote threshold for passing them, all but ensuring their defeat. Given the diversity of views on immigration policy in both parties, it’s not surprising that this process collapsed almost immediately amidst finger-pointing and accusations of foul play. Each side blamed the other for the impasse and pledged to keep fighting.
Yet a closer look reveals that the bill’s failure was due to the politics of effort.
For their part, Democrats did not have to shut down the government to get an immigration vote. They could have instead forced a vote at any time by either moving to proceed to a stand-alone bill or by offering an amendment to other legislation pending on the Senate floor.
Under the Senate’s rules, any member can move to proceed to a bill. Senators instead defer to the majority leader to do so because it’s convenient. Democrats could have also offered a third-degree amendment despite the leaders effectively filling the amendment tree and then appealed the subsequent ruling of the presiding officer that the amendment is not in order. Doing so would have forced a recorded vote in relation to the amendment and/or the majority to filibuster the appeal, which would have elevated the issue on the public’s agenda, making its resolution more likely in the end.
As for the Republicans, their complaints about Democratic obstruction thwarting progress on an immigration bill also appear insincere. Take John Cornyn’s, R-Tx., claim,“We’ve got the hall. We’ve got the people, but we can’t make them debate.” Cornyn’s assertion is that the Democrats were single-handedly preventing the Senate from voting. But that isn’t how voting procedures work in the Senate. The minority can’t just veto the measures on which the majority would like to vote. It takes effort to obstruct.
Had they been willing to do so, Republicans could have made it harder for Democrats to obstruct simply by following the existing procedures in the Senate’s rules. While the presiding officer is the only person who can call for a vote in the Senate outside of the cloture process and other expedited procedures like reconciliation, there are limits on when he or she can do so. According to Senate precedents, “As long as a senator has the floor, the presiding officer may not put the pending question to a vote.” In that scenario, “debate may continue indefinitely if there is a senator or a group of senators who wish to exercise the right of debate.” Senators vote when there is no one on the floor who wishes to speak.
But the precedents also state that the presiding officer must call a vote on the pending question “when a senator yields the floor and no other senator seeks recognition.”
Contrary to Cornyn’s claim, the Senate should have voted on the immigration bill if members were unwilling to speak. In reality, the Democrats could not have delayed a vote on the immigration bill, or any amendments offered to it, without the Republicans’ cooperation.
If the Senate rules empower the minority to participate in the legislative process and the majority to overcome needless obstruction, then why doesn’t either side use them more often?
There are two reasons why senators don’t use the existing rules to legislate. First, it takes a lot of work. While Democrats could have forced an immigration vote prior to the shutdown by moving to proceed to immigration legislation or offering it as a third-degree amendment to another bill, doing so would have created the expectation that they would do it again in similar situations in the future. Such hardball tactics thus deprive members of a convenient excuse for inaction when their rhetoric and policy positions are not aligned.
For the Republicans, forcing Democrats to mount a “Mr. Smith Goes to Washington” style “talking” filibuster also takes effort. Once the bipartisan support necessary for a stage-managed process is eliminated, the majority’s rank-and-file would have been required to be on call at all times when the Senate was in session in order to prevent surprise maneuvers by the Democrats. Additionally, the Senate’s easy-going schedule would have likely given way to late nights and weekend sessions as the minority retaliated for the majority forcing it to mount a talking filibuster in the first place. And using such tactics empowers the rank-and-file senators in both parties vis-à-vis their leaders. Consequently, the majority and minority leaders would have to work harder to corral members in the freewheeling Senate that would result.
Second, the unpredictable nature of the deliberative process compounds the impact of having to expend more effort to legislate. Outcomes can’t be known in advance because members may propose amendments on the Senate floor that may change significantly the content of the underlying legislation. The effort and uncertainty associated with the politics of effort makes it less appealing to senators. The Senate’s declining legislative record over the last decade suggests that its members increasingly prefer convenience and certainty over inconvenience and hard work.
Today, senators look for silver bullet solutions like changing the rules to overcome obstruction. But such reforms will not eliminate gridlock. Ultimately, members can end the Senate’s current dysfunction can only be embracing a politics of effort.