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The topic of this episode is, “Does the Senate still work?”
To answer that question, we have Martin Gold, a partner with Capital Council, LLC, a government relations firm in Washington, DC. Marty spent many years in the US Senate working for individual senators, committees, and a majority leader. He also is the author of the book, Senate Procedure and Practice (Rowman and Littlefield, 2018), which explains how the Chamber operates.
So, Marty has both an inside view of the Senate and he has a long view of it, which is why I wanted to have him on the program to answer the question, “Does the Senate still work?”
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.
I'm your host Kevin Kosar and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.
Welcome to the program.
Thank you for having me, Kevin.
The subject of this episode is, “Does the Senate still work?” So it occurs to me that—to answer that question—it might be helpful if I first asked you, “What does a working Senate look like?”
A working Senate is a Senate that is mindful of its constitutional responsibilities, which it has many. Some powers are expressly stated in the Constitution and are unicameral powers, like the power over nominations, the power over treaties, or the power to run impeachment trials. And then a number of other powers that are obviously exercised on a bicameral basis.
But I think if you go beyond the text of the Constitution itself and consider the constitutional purpose of the Senate, its purpose is to slow things down and be a more deliberate body. James Madison talked about, in the Federalist Papers, the Senate being a necessary fence against the passions of the House of Representatives. The rules and the precedents of the House and the mechanisms of the House allow it to move very quickly when the majority party wants to move quickly and the minority has very little, if anything, to say about it and it can push things through on a fairly instantaneous basis. It's a legislative juggernaut.
The purpose of the Senate is to be the necessary fence against that, to slow things down, and to create a more deliberative process. And when you get beyond the stated powers of the Senate and the Constitution and look also to the purpose of why we have a bicameral legislature, I think the Senate, in fact, does serve that function quite well. It doesn’t serve it in exactly the same way as it may have served it years ago. Senates do change, not only on the basis of the people who are serving in the body but also on the national mood of the country. When people talk about polarization in the Senate. It has to be remembered that the Senate is a political institution and that the polarization in the Senate reflects the polarization of the American people. If the Senate were really out of step with the American people, query how many of those senators would remain senators as the public thought that somehow or other they really weren’t being appropriately represented in the place. So how the Senate goes about serving the constitutional functions—both formal and informal—is different perhaps than it may have been in the past. Nevertheless, I still think it is the necessary fence in the great constitutional structure we have.
I want to quote something from the start of your book where you write, “If one were to encapsulate the difference between House and Senate procedure in nine words, they would be ‘Dominance of the offense versus dominance of the defense.’” I think it’s useful for our listeners to get a sense of how is the Senate different from the House. Okay, they play more defense over there. They are the fence you were talking about. Why does it work that way?
I should begin by explaining what that terminology means because I’ve used it for years and years and it remains true. If they got rid of the filibuster in the Senate it might not be so true, but it’s true now anyhow. The House is an institution, particularly as that has evolved over American history, where the rules and the precedents of the institution and the mechanisms of the institution—such as the House Rules Committee—all served to enhance majority party power. Meaning, in effect, that a majority that can hang together, particularly on procedural questions, can not only set up the terms for debate and consideration in the House but can really push things through on a very rapid basis without, again, much accord being given to minority perspectives or viewpoints. That’s dominance of the offense.
The Senate is exactly the opposite. The rules of the Senate and the precedents of the Senate and the absence of mechanisms such as a rules committee all serve to enhance the power of minority parties, minority coalitions, and individual senators. So it is a place where the defense really can dominate the institution. It isn't to say that the defense can just stop anything it wants to. It is to say that things take longer to get through. Sometimes they can be stopped and sometimes the defense can use its power to modify the procedures by which things will be considered. But the bottom line of it is: not only is the Senate different from the House in obvious ways such as the sense of the length of terms of the members and the way we have two per state equality of membership (as opposed to proportionality) or the just general size of the body, it is also different in terms of how it exercises its power under the Constitution.
It's one of the things in the Constitution that people tend to overlook. The framers of the Constitution did not write the rules of the Senate, nor did they write the rules of the House of Representatives. They wrote no rules at all. They, however, gave both senators and representatives the power to govern themselves however they saw fit. And so it can be argued that the rules that have developed in the House over the course of time serve the constitutional purposes that the House is supposed to serve and that the rules of the Senate—as they have evolved over time—serve the constitutional purposes of the Senate. Again, the framers did not arrange for those things. Senators could have structured rules however they wanted to structure them, same with representatives. But the evolution over time, I think does, in fact, serve the broad constitutional purposes that you have in a bicameral legislature. Otherwise, you could just have a unicameral legislature.
Since you mentioned rules, I figured I want to just drill down a little bit more on this. Every two years we have elections and we get a new Congress. As part of that, the House of Representatives will review its rules and they’ll vote to alter them. And this is typically a partisan exercise where whichever party has the most people gets to rewrite the rules. Senate doesn’t work that way, does it?
The Senate does not because 100% of the House of Representatives is freshly elected every two years. Therefore, the rules of one Congress do not carry over to the next Congress. There is, I should say, substantial similarity between the rules of one Congress and the rules of the next. The rules of the Pelosi Congress and the rules of the present Congress are substantially similar—although not identical because the Republicans, when they came in and had that highly-publicized rules controversy wrapped around the election of Kevin McCarthy as Speaker, did make some changes to the last set of rules that Pelosi had had as Pelosi and the Democrats made changes to the Ryan rules that preceded them. So while there is vast similarity, there are also important differences. The Senate, however, is a continuing body. Two-thirds of the senators continue over from one election to the next. It is supposed to be that way.
You could have otherwise had the framers elect the entire Senate all at once. But the framers divided the Senate into three classes, making sure there was always a quorum of the Senate present so that if you replaced every single senator who was up for election in a particular election cycle, you would still have stability in the chamber. And because of that, the rules of the Senate do carry over from one Congress to the next. They are sometimes changed, but when Mitch McConnell was the majority leader, for example, there was not a single time in his tenure as leader where he proposed a rules change. And Chuck Schumer has been the leader now going on three years, he hasn't made changes either. The last time they formally amended the Senate rules was in 2013.
Here's another thing to note—and you alluded to this—in the House what the minority thinks about the rules change is irrelevant because the majority will just pass the change it wants to pass. In the Senate, it only takes a majority of senators voting to change the rules. However, there is a special requirement to end debate on the rules change. We're talking about formal amendments to the rules. There's a special requirement that says you've got to have a two-thirds vote to invoke cloture and end debate on the rules change. So what does it mean? It means that if you're going to get an amendment to the rules of the Senate, the majority cannot steamroll the minority. They're going to have consensus with the minority. The last time we had a rules change in the Senate, I think the vote was something like 86 to nine for the rules change.
So what does it mean? What’s it show? It shows that when Senator Reid was then the majority leader sought the change, he had to negotiate the change with the minority and gain consensus from the minority leadership. If they did not have consensus from the minority leadership, the vote wouldn’t have been 86 to nine. There would have been a substantial amount of dissent, so much so that I doubt seriously they could have ended debate on the change. So not only do the rules continue over in the Senate, but because of minority rights that exist in the Senate in ways that do not exist in the House, the minority has something to say about the content of the rules change.
Just to go a little bit further for our listeners on this issue of rules and how a chamber operates, if the Senate doesn’t frequently change its rules, does it change other things about how it operates? You have a switch in party control of the Senate, going from McConnell to Schumer. Do they have written agreements between the parties about how committee resources will be divvied up, for how other things will be done? How do they coordinate?
They have organizing resolutions at the beginning of the Congress. How many members are going to serve on what committees? What’s the ratio of minority to majority membership on the committee? What about the resources of the committee? We just had a situation in the last Congress that was quite uncommon with the 50-50 Senate where committee resources were divided absolutely evenly. It’s normally a two-thirds versus one-third division on staff that can be, for example, determined to be partisan staff as opposed to a purely administrative staff, things of that sort. So they have a negotiation that gives you an agreement on organizing resolutions and when those ratios are agreed to and then the members are assigned, that’s all part of a big negotiation. So that is a normal thing. It happens every two years.
But I thought, Kevin, that you might be going someplace else with that question. So if you’ll permit me to answer the question you didn’t ask, we’ve talked here about formal amendments to the standing rules, yet procedures do change and they’re not always changing by formal amendments to the standing rules. So if you think about it this way, the Constitution gives the Senate, like the House, the power of self-governance. How do you manifest that power? Well, the rules of the chamber are one manifestation of that power. You set up rules to govern yourself. Unanimous consent agreements, which they enter into all the time in the Senate, are another manifestation of that rulemaking power. Expedited procedure laws like the Congressional Budget Act provide a process for considering budget resolutions and budget reconciliation bills. Those expedited procedure laws are another example of the rulemaking power. And a fourth example, and quite important, is precedent, the precedents of the chamber.
Now, precedents most often interpret language in the rules—they give texture to that language. However, precedents will sometimes outright contradict the rules. And some will say, "Well, how can a precedent contradict a rule?" Because the precedent, like the rule, is an exercise of the rule-making power. Those exercises stand on equal footing. The latest exercise in time is the one that prevails. For example, Senate Rule 22 says that to end debate to a normal cloture motion, not on a rules change, but a normal cloture motion on a nomination takes 60 votes. But because of precedents that were set for every nominee except for the Supreme Court in 2013 and in 2017 on the Supreme Court, it only takes a majority of senators voting not 60. The rule still says 60; the precedent contradicts the rule. The rule was never amended formally, but the precedent is what governs because the precedent of 2013 or 2017 is later in time than the rule of 1975.
So when we talk about how the Senate governs itself, the examples of those precedents were not an example like the one I gave of bicameral negotiation and agreement. They were examples of the majority party at that moment pressing down—or maybe you could say, oppressing—the minority of the moment. So in the first case in 2013, it was done by the Democratic majority, and in 2017 it was done by the Republican majority. So you’re in this kind of rough position. You have a set of rules that people can and should be expected to live by, but it is also correct that there is not a rule that you can write that will withstand the will of a willful majority to write a precedent that could contradict that rule.
Therefore, we come to the great unwritten rule, which is the rule of self-restraint. Any majority has the power to contradict anything, past rules, precedents, anything. But whether they can do it and whether they should do it are two separate questions, and the great question for Senate governance now and I think going forward is the degree to which self-restraint will triumph over the temptation to rearrange the rules to serve your immediate political purposes.
That very nicely sets up my next question, which really speaks to the issue of the episode in a straightforward way, which is, the Senate has various constitutional responsibilities such as considering treaties and nominations and a whole lot more. How well is the Senate performing these responsibilities today? Is it doing better or worse than it did when you first worked in the Senate?
When I first worked in the Senate—now, we’re going back over 50 years because I started working there in 1972 for a five-term senator from Oregon, Mark Hatfield—the Senate of those days was a four-party Senate, even though you only had two parties. But it was a four-party Senate with—if I can use the terminology of those days—liberal Republicans, conservative Republicans, liberal Democrats, and conservative Democrats. There were many fewer examples of party-line voting. Instead, you had cross-party coalitions that often formed and were sometimes moved around and so forth. As people executed their constitutional responsibilities, you didn’t have the polarization. You had, I think, because of the absence of that polarization, a greater degree of self-restraint. You didn’t have the tribal atmosphere driving people to creative procedural solutions that would serve political ends. That was the Senate that I knew when I first started.
This Senate is very much a two-party Senate, not a four-party Senate. You do have people on, let's say the left end of the Republican caucus and you have people on the right end of the Democratic, but nevertheless, there is a fundamental homogeneity in both caucuses. So the Senate, obviously, is not going function exactly as it did. You're going to have more party line voting than you had. You're going to have a greater degree of aggressiveness both in the exercise of minority rights and also in majority rights. Just to give you an example, cloture motions used to be very uncommon. Maybe they’d be a dozen in a year, something like that. Now there are 20 times that in a Congress. You now have hundreds of cloture votes in a Congress.
If you don’t have unanimous consent to move something, which is almost inevitable, it’s going to require cloture, 60 votes in order to move something. So you not only see the 60-vote threshold imposed on cloture votes, you see it imposed on unanimous consent agreements, for example, that say, “Well, we won’t make you run through the cloture process, but we will make you adhere to the cloture threshold. If that amendment is going to pass, it’s going to need 60 votes. If that bill is going to pass, it’s going to need 60 votes.”
Cooperation in the modern Senate often takes that form. “We’ll let you avoid the cumbersome cloture process”—and it is a cumbersome process—“We’ll avoid the cumbersome cloture process and allow you to move things more rapidly, but...