U.S. Senate Majority Leader Sen. Mitch McConnell (R-KY) (L) chats with Senate Minority Leader Sen. Chuck Schumer (D-NY) (R) during a Congressional Gold Medal presentation ceremony October 25, 2017, at the U.S. Capitol Visitor Center in Washington, D.C. (Alex Wong/Getty Images) per Newsmax
As we enter the new year — importantly a Congressional election year — the Senate is mired in hyper-partisan vitriol.
Although Majority Leader McConnell has talked about more bipartisanship for 2018, it seems unlikely. With many partisan issues before the Senate, beginning with funding the government, immigration and possibly cuts to entitlements, and given the performance of recent years, it is much more likely we will find Republicans and Democrats once more behind their respective barricades, hurling explosive partisan rhetoric at each other.
An important part of the breakdown in the Senate is related to repeated misuse and abuse of the Senate’s rules.
Earlier today I wrote a letter to Senate Majority Leader Mitch McConnell and Democratic Leader Chuck Schumer calling for a bipartisan Senate select committee to address needed changes in Senate rules and to foster regular order:
Dear Senator McConnell and Senator Schumer:
I write to respectfully suggest the formation of a select Senate committee to address changes to the Senate rules in the best interest of the future of the United States Senate.
I am the co-author (with Senate Parliamentarian Emeritus Robert Dove) of "Defending the Filibuster: The Soul of the Senate" published in a second edition in 2014. For the past nine years, I have been a Visiting Lecturer in Political Science and International and Public Affairs at Brown University. Prior to that time, for more than 34 years, I served in senior staff positions with former Majority Leader George Mitchell, Senator Paul Tsongas and Senator Carl Levin.
It is clear that in recent years the Senate and the respect for its rules have suffered in the face of increasingly polarized hyper-partisanship. As legislating has become more difficult due to a lack of bipartisanship fostered by both parties, a number of Senate rules have been used and abused to meet totally partisan objectives, often at the cost of damaging confidence in the Senate itself.
Most egregious in my judgment are the changes made by first one party and then the other in the precedents for interpreting the meaning of Rule XXII with respect to cloture on presidential nominations. However, the list is long. Majority leaders have taken steps such as the immediate filing of a cloture petition when a bill is taken up, excessive use of the strategy of “filling the amendment tree,” bringing bills directly to the Senate floor bypassing committee consideration through Rule XIV and other means, clearly abusive use of the filibuster itself for purely obstructing the majority party, excessive demands for the use of the thirty hours available post-cloture and application of reconciliation procedures under the Budget Act for purposes never intended.
The twin pillars of the Senate’s protection of minority rights are unlimited debate and unfettered amendments. In recent years, both protections have been repeatedly undermined by failure to observe regular order. My great fear is that partisan political pressures will eventually lead to the elimination of the filibuster for legislative matters. This step could reduce the Senate’s role to a mere shadow of the majoritarian House of Representatives.
Those of us with long history of working with the Senate know and as senators have recognized in the past, the best protection for the unique rules of the Senate, especially the crucial existence of the filibuster, is to balance the use of such rules with restraint. It is only by self-limiting the use of the minority’s right to filibuster that majorities won’t be tempted in the future to take the short-sighted political expedient of destroying the Senate’s rules as we know them.
I would like to propose that you convene a bipartisan select committee (with equal party representation) to consider and design a package of revisions to Senate rules which would only be adopted consistent with existing rules, including the potential requirement of a two-thirds vote to end debate.
The timing is critical. I believe that significant rules reform cannot be easily achieved in the current polarized state of the Senate. Majorities reliably defend rules which benefit the majority and minorities often seek to change them. As party control changes in the Senate, so do the positions of the parties on these rules matters. For this reason, I believe that the time between now and the 2018 Congressional elections is crucial. If a select committee could be instructed to complete its work in time for the Senate to act prior to November of 2018, it seems probable that the two parties’ uncertainty over which would be the majority and which the minority in the next Congress would increase the changes of senators making judgments concerning changes in the rules with only the best interests of the future of the Senate in mind.
To enhance the uncertainty of party control, the effective date of any rules adjustments could be delayed until 2021, after the presidential elections.
I am aware that this proposal may strike many as unrealistic or even naïve. I am convinced however, that it represents perhaps the last best hope of addressing the rules without damaging or destroying the unique role of the U.S. Senate.
Richard A. Arenberg is a Visiting Lecturer in Political Science and International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter @richarenberg.