Senate rule changes come with risk

It’s an election year, and the Senate can’t agree on how to keep the student loan interest rate from doubling on July 1 from 3.4 percent to 6.8. While both sides agree that it should be done, how to pay for it is the stumbling block. A party-line cloture vote failure has once again brought calls for changing the Senate’s rules by majority vote at the beginning of the next Congress, bypassing the two-thirds cloture requirement if there’s opposition. 

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The Senate’s membership has changed considerably in the last decade, but the Senate rules, with the exception of some changes that were enacted in the Ethics in Government Act, have not undergone any major changes since the Senate went on TV in 1986. While the House has its Rules Committee, which allows the majority to exert its will and control the flow of legislation, the Senate has a tradition of protecting the rights of the minority and of unfettered debate. Its own website describes “[t]he legislative process on the Senate floor [as] a balance between the rights guaranteed to Senators under the standing rules and the need for senators to forgo some of these rights in order to expedite business.”

The Senate has for centuries functioned by this compact of selectively forgoing one’s rights, but now that compact, to some, seems to have broken down — hence the call to enact rules changes at the beginning of the next Congress by majority vote. These calls have come from Democrats, but they are quick to admit that it should apply regardless of who is in the majority at the time.

Such changes can certainly quicken the process and allow for the majority to pass legislation and confirm presidential nominees with little hindrance. While the initial rules reforms will probably be limited to restricting debate on a motion to proceed and other less dramatic changes, eventually such majority rules changes at the beginning of a Congress will result in a majority-controlled body similar to the House. Once the Pandora’s Box of granting the majority the unfettered ability to change the rules every two years has been opened, having seen how the current situation has escalated, tit for tat over the last 30 years, it is difficult to believe that strict majority rule would not be the ultimate result. Thereafter, a member of the minority in the Senate will be just as impotent as his or her House counterparts. 

Filibusters and the forcing of a cloture vote have been repeatedly used to stop legislation and nominations and to waste time. This is why the number of successful cloture votes, many on noncontroversial nominations and on motions to proceed to bills, has gone up dramatically in recent years. By requiring the cloture vote and then voting for it, the minority has been able to waste considerable time and thus reduce the amount of time available to act on other items of the president’s agenda. 

The call for changing the Senate’s rules by majority vote at the beginning of a Congress is not new; it was attempted without success in 1953 and 1957 and in 1959. When faced with such an effort, then-Majority Leader Lyndon Johnson negotiated a cloture change back down two-thirds of those present and voting, but as part of the compromise he had to add Paragraph 2 to Senate Rule V, which states “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”  

So is it time to ignore the existing rules and change them at the beginning of the next Congress by a majority vote? Perhaps it is time — so many other changes have occurred in our lives in the recent past, why shouldn’t the Senate change the way it does business? However, should that occur, one must be prepared to live with the eventual outcome of a Senate where the majority rules and the rights of the minority have been severely curtailed. 

While I can sympathize with those demanding such changes, it’s the manner of their implementation that keeps reminding me of the exchange between Sir Thomas Moore and his son-in-law, William Roper, in the movie “A Man For All Seasons”:

Roper: “So, now you give the devil the benefit of law!”

Moore: “Yes! What would you do? Cut a great road through the law to get after the devil?”

Roper: “Yes, I’d cut down every law in England to do that!”

Moore: “Oh? And when the last law was down, and the devil turned ‘round on you, where would you hide, Roper, the laws all being flat? …Yes, I’d give the devil benefit of law, for my own safety’s sake!”

Paone is executive vice president of Prime Policy Group. He worked on the Senate floor from 1979 to 2008, serving as Democratic secretary from 1995 to 2008.

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