Richard A. Arenberg, who worked on Senate and House staffs for 34 years, is co-author of “Defending the Filibuster: The Soul of the Senate.” He is an adjunct professor at Brown University.
There is a good case to be made for structural changes to the Senate. Clearly, the chamber is not functioning well. Continued rules reform by majority fiat, such as the use of the “nuclear option,” will not reduce but exacerbate the extreme partisan polarization at the heart of the gridlock.
The historic difficulty with changing the filibuster rules is that when the majority shifts from one party to the other, each party’s view of the filibuster tends to shift. As recently as 2005, Republicans were attacking the filibuster and Democrats, then in the minority, were vigorously defending it. Few senators who have served in both the minority and the majority have held consistent views on this issue.
The good news is that the November elections and the uncertainty about their outcome open an opportunity the leadership of both parties should seize.
The Senate majority leader and minority leader could agree to a select committee to negotiate a package of reforms to the Senate’s rules. For example, filibusters could be prohibited on the procedural motion to take up a matter for debate and amendment. This would not interfere with the minority’s right to filibuster a bill once the Senate is considering that legislation. Also, once cloture has been invoked ending a filibuster, time for further debate could be reduced from the current 30 hours. Both are often used merely to obstruct.
Part of the agreement to create the committee would be the proviso that any changes agreed upon would go into effect only at the outset of the 115th Congress, in January 2017. Since the 114th Congress, elected this November, probably will be closely divided, control of the following Congress will be difficult to predict.
Neither Democrats nor Republicans could be reasonably confident of which party will be the majority. Negotiators would be uncertain which status they would hold when the rules took effect, creating a better chance that they would work in a bipartisan fashion to reach the fairest and most effective rules for the Senate.
This is a bit like the trick parents use when dividing a piece of cake between two children. They ask one child to cut the cake with the understanding that the other child will get to choose. This almost always results in the most equal possible division.