How a Bill Doesn’t Become a Law

Eight ways to fix the Senate—and why they won’t happen.

Calls for Senate reform peaked over the weekend after Sen. Richard Shelby, R-Ala., put a “blanket hold” on more than 70 Obama nominees, not out of principled opposition, but because two projects in his home state of Alabama weren’t getting enough attention. [Update, Feb. 9: Shelby lifted most of his holds late Monday.]

This, for Senate-reform advocates, was the last straw. “The genie is out of the bottle with this abuse of Senate rules,” wrote FireDogLake’s Jon Walker. “I congratulate Shelby on fully exploring the logic of the modern United States Senate,” remarked Matthew Yglesias. “Why, after all, should a great nation of 300 million people have a functioning government if preventing the government from functioning can help a lone Senator advance parochial interests?” “America is not yet lost,” Paul Krugman reassured. “But the Senate is working on it.”

Complaints about Senate procedure tend to focus on two tools: The filibuster, which many liberals hold responsible for the failure (so far) of health care reform, and the “hold,” which allows a single senator to stall a president’s nominee. Both mechanisms are outdated, say critics. Filibusters used to be rare, with roughly 8 percent of major bills getting blocked in the 1960s. Now, the rate is 70 percent. And holds, while always common, are being used more frequently now than ever.

What can be done? Well, quite a few things. What will be done? Probably not much. Here are a few of the possible reforms on the table—and why they won’t pass anytime soon.

Lower the threshold—but not yet. In 1975, the Senate lowered the number of votes needed for cloture from 67 to 60. Now, some reformers suggest they lower it even further—to 55, say, or all the way to 51. No minority is going to undermine itself by scrapping the filibuster immediately, so the change would kick in six or eight years from now, when either party could be in power.

Why it won’t work: Altering the filibuster requires changing the Senate rules, and changing the Senate rules requires a 67-vote supermajority. It’s hard enough to get 60 votes on a contentious issue like health care reform. Getting 67 votes on scrapping the filibuster? Unlikely. “Nobody’s got 67,” says Sarah Binder of the Brookings Institution. “Unless there’s some calamity where the two sides come together.”

Lower the threshold slowly. One proposal that gets kicked around is to keep the initial threshold for cloture at 60 votes, but then lower it incrementally. After three days, it falls to 57. Three days later, to 54. Three days later, to 51—a simple majority. That way, the minority has time to express its opposition, but can’t block legislation forever.

Why it won’t work: While the proposal sounds good in theory, it faces the same obstacle as abolishing the filibuster altogether: This, too, would require 67 votes.

Use the fast track. Senate rules allow the chamber to “fast track” certain pieces of legislation, or pass them without extended debate. Budget reconciliation is just one example. Congress can also fast-track treaties or troop requests. The Senate could conceivably set up fast tracks for other types of legislation, too, like judicial nominees—if, say, a bipartisan commission signed off on a nominee beforehand—or for raising the debt limit.

Why it won’t work: Fast-tracking legislation is more plausible than scrapping the filibuster altogether, since it would take only 60 votes to accomplish instead of 67. But the political cost could still be high, as the minority party would accuse the majority of shoving the bill through using unconventional channels. (See the current bickering over reconciliation.)

Limit the opportunities for filibusters.Filibuster, in the singular, is a misleading term. It should really be plural. Any piece of legislation needs to overcome several different procedural hurdles, including a motion to proceed with debate, a motion to end debate, a call for a conference, the naming of conferees, and a motion to proceed to conference. All of this takes time: The Senate must wait at least 24 hours for a cloture petition to “ripen,” plus another 30 hours for consideration after cloture is invoked. Congress could speed up the process by eliminating some of these votes. The filibuster would be intact, but its stalling potential would be lessened.

Why it won’t work: It might achieve a short-term goal of speeding the final vote. But it doesn’t change the need for 60 votes to get anything done. In the end, the majority—which presumably has other items on its agenda—is more likely to blink.

Roll out the cots! It’s been years since we’ve seen a full-blown Jimmy Stewart-style filibuster. These days, the mere threat of a filibuster is tantamount to the real thing. Why don’t the Democrats require the Republicans to actually stand there and talk (or not) for days on end?

Why it won’t work: It makes everyone look bad. The majority could accuse the minority of obstructing, sure, but the minority could just as easily accuse the majority of wasting the American people’s time.

The “nuclear option.” This procedural gambit was made famous in 2005, when Republicans sought to scrap the filibuster in the face of Democratic opposition to George W. Bush’s judicial nominees. The process itself is complex and opaque, but in short, the presiding officer (the vice president or the Senate president pro tempore) rules that the president’s nominees require a mere majority vote, the opposition appeals, the majority votes to table the appeal, and from then on, a simple majority rules—effectively killing the filibuster.

Why it won’t work: Because, well, senators like the filibuster. The 2005 effort failed when the bipartisan “Gang of 14”—seven Democrats and seven Republicans—interceded to block a majority vote from changing the senate rules. Senators may not like the filibuster when they’re in the majority, but they cherish it as the minority.

Make holds public. Most holds on Senate nominees are anonymous—that is, a senator can stall a nomination without having to reveal him or herself to anyone but the Senate leadership. Some suggest that requiring holds to be public would discourage them, since senators would be too embarrassed.

Why it won’t work: Shelby is a case in point that senators feel no shame about placing holds. If anything, they’re proud of them. And even if the Senate imposed a rule that a hold would become public after, say, six days, Senators could simply remove their holds just before the deadline arrives, to be replaced by a hold from an anonymous colleague.

Ignore holds altogether. There’s nothing in the Senate rule book that covers holds. Rather, they’ve grown out of the Senate practice of “unanimous consent,” which allows the Senate to move forward on legislation without taking a vote on every last procedure. When a senator places a “hold” on a nominee, he or she is merely blocking the unanimous consent motion. The majority leader can still put the nomination to a vote and override the hold with a 60-vote supermajority.

Why it won’t work: Unanimous consent works because the Senate considers itself “a collegial body” in which members respect each other. Part of this tradition is majority leaders respecting the holds placed by individual senators. To ignore a hold would be seen as an affront at best, at worst a declaration of partisan war. Senators also like being able to place individual holds. If they revoke the opposition’s ability to do so, they revoke their own.

Proposals for Senate reform may pick up steam in the next few months, as Democratic frustration mounts and the 2010 elections approach. But the odds of streamlining the Senate anytime soon are low, thanks to a central paradox: Changing the rules surrounding the supermajority (60 votes) requires an even greater supermajority (67 votes). As of now, the political will simply isn’t there.

The inability to get anything done may eventually reach crisis level. Anger with the chamber may run so high that Senators are forced reform it or get voted out. But until then, they face a collective action problem: No one wants to give up the power to obstruct, even if it means that their own goals get obstructed. Plus, the Senate is still getting stuff done. It’s mainly the big-ticket legislation like health care reform and the stimulus package that run into problems. “Eventually, senators could realize the institution has become unworkable,” says Gregory Wawro, a political science professor at Columbia University. “At that point, you will get reform.” But it could be a long wait. You might need a cot.