2.9 Congressional Rules Fixes

It’s time that Americans demand that the Congress find the means to break through its own gridlock before we become an American version of the Polish Sejm, that is, before we too have a legislature known only for its inability to act. Find some cajones, you guys, and ACT to save your own institution before it crumbles into carping, name-calling, gotcha-moments, political theatre, and total incompetence. You have the power to fix this. Here are several specific proposals to accomplish just that.

2.9.1 Reform the Filibuster

Senate rules permit any senator to talk forever on any legislation under consideration. These rules also allow the senator who is speaking to pass the baton to any other senator, who can continue speaking without interruption until again passing the baton to someone else. In this way, a small group of senators can prevent any legislation from coming to a vote – they just keep speaking until the Senate leaders agree to withdraw the bill the minority doesn’t like. It does not matter how important that legislation is – defending our country, paying our bills, whatever.

During the nineteenth century, Senate minorities perfected the rarely-used practice of talking a bill to death, which came to be known as filibustering. Unlimited debate continued in the Senate until 1917, when the Senate adopted a rule that permitted a two-thirds majority of senators present and voting to end debate on a bill, thus allowing the bill to come to the floor for an up-or-down vote. This device is called “invoking cloture” – that is, choking off further debate. With 100 senators, this meant that 67 votes were needed to invoke cloture. In 1975, the number of votes needed to invoke cloture was reduced to three-fifths, or 60 senators. So at present, 41 senators can kill any bill, even if 59 senators want to vote on it. In practice, it’s often not even necessary to mount the filibuster – just threatening to filibuster is enough to kill the proposed law: Senators do not need to actually filibuster; they can just declare their intention to do so, and the 60-vote majority is in effect.

Many Americans might be surprised to learn that the Constitution does not prescribe rules of debate for the Senate. The filibuster rules are only traditional practices adopted as Senate Rules of Order, which the Senate adopts anew as its first order of business whenever a new Congress convenes. The Senate has the authority to amend those rules by a two-thirds vote whenever it so chooses or by a simple majority vote at the beginning of a new Congress. Without any question, we should demand that the Senate change these rules. (You might be interested to learn that the original House of Representatives also had unlimited debate, but the increasing number of House members made the practice unwieldy, and so the House changed its rules – just like the Senate should do now.)

Certainly the simplest fix to this conundrum would be to just do away with the filibuster altogether and let all Senate decisions be made by majority vote (with the exception of those few issues where the Constitution mandates a two-thirds majority). If the electorate does not like the laws that are passed by majority vote, then the voters can elect new and different senators at the next election.

However, if the upper chamber wishes to retain some form of the filibuster to protect the rights of the minority, then I would suggest the following novel rule:

  1. Except as provided herein or as mandated by the Constitution, all Senate decisions are made by majority vote.
  2. All legislation has an automatic effective date of July 1 in the year following the next Congressional election. A three-fifths majority of the Senate may adopt an earlier effective date. In this way, a group of 41 senators can delay implementation of a law until seven months after the next election, giving voters the chance to weigh in before that law takes effect.
  3. As at present, any senator or group of senators may speak about any matter under consideration without interruption. However, a simple majority may invoke cloture. With this rule, both the filibuster and cloture should become much more rare.
  4. Any senator may introduce a motion to bring any matter to the floor, including any pending legislation or presidential appointment. If a majority of senators agree to consider it, that matter will become the first order of business on the next day that the Senate is in session.

2.9.2 Blocking Presidential Appointments

At present any senator may block any presidential executive or judicial appointment. Recent modifications to Senate rules have curtailed this practice to some extent, but the practice or tradition of blocking appointments through the actions of a single senator should be abandoned altogether. Rule number 4 above will solve this.

Perhaps a better approach would be a constitutional amendment concerning presidential appointments, which would allow the president to appoint someone temporarily if the Senate fails to act on a presidential nomination for 60 days. The temporary appointment would end when the Senate acts or at the end of the current session of Congress, whichever occurs first.

2.9.3 Rules for Bringing Legislation to the Floor of the House of Representatives

Both major political parties, at various times, have used their majority status in the House to prevent House consideration of legislation which might pass the whole House with bipartisan support but which does not have enough support to pass the whole House within the majority party itself. At present this problem manifests itself as Republican obstructionism, but that is only because the Republicans currently are the majority party in the House of Representatives. Democrats are equally capable of these shenanigans.

Here is how this works: We have 435 members of the House, so 218 constitute a majority. The Republicans currently have 240 representatives, and 195 representatives are Democrats. Before any legislation comes to the floor for a vote, it must be passed by the House Republican Conference – that is, all the Republican representatives. But if a bill has the support of fewer than 218 Republicans within the Republican Conference, the leadership does not allow the bill to come to the floor of the whole House.

The purpose of the current rule or practice is to block any legislation that would need Democratic votes in order to become law. Thus it prevents the Democrats from taking any credit. The real effect of this practice is to give any group of 23+ Republican representatives veto power over all legislation. It ruined the Speakership of Representative John Boehner. It makes governing extremely difficult if not impossible. It destroys any hope of bipartisanship. It brings the US House of Representatives that much closer to becoming the Polish Sejm of the 18th century.

Fixing this could involve the following new House rules:

  1. Any bill that has the support of a majority of the majority party in its conference will advance to the floor of the House. In our present House of Representatives, that means that any bill supported by a majority of Republicans within the Republican Conference (121+ Republican members) will be brought to the floor of the House.
  2. Any representative may introduce a motion to bring any matter to the floor, including any pending legislation. If a majority of House members agree, that matter will become the first order of business on the next day that the House is in session.
  3. As a most extreme solution, the Speaker of the House could become a non-partisan position, perhaps not even an elected politician or member of the House; or it could become a bipartisan position, in which the Speaker of the House must be approved by a majority of the members of both political parties. In either case, the job of Speaker should be to ensure the smooth functioning of the House, and to bring to the floor any measure recommended by the leadership of the majority party or by a majority of all House members.

2.9.4 Executive Orders

Congress should pass a law that requires the president to give Congress a 30-day warning before the effective date of any Executive Order. In addition, during that 30-day waiting period, either House by a majority vote can prevent that Executive Order from going into effect. (Of course, in the event of a national emergency, Congress could simply pass a law equal to the Executive Order, allowing it to go into effect immediately.)

If the courts find such a law to be an unconstitutional infringement on the authority of the executive, then a constitutional amendment may be in order.

2.9.5 Conclusion

In sum, we need an overhaul of the procedures that govern the way Congress operates. Americans deserve a Congress that serves the interests of the people. We do have the power to insist upon a functioning democracy. To achieve this fundamental goal, we will need to elect senators and representatives who actually want to govern and who want to work with all sides to arrive at solutions that work for all.

 

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