Bending the rules of reconciliation and filibusters, the Senate got twisted

By Ezra Klein
Sunday, March 7, 2010

Ask a kid who just took civics how a bill becomes a law and she'll explain that Congress takes a vote and, if a majority supports the bill, the bill goes to the president. That's what we teach in textbooks, but it's not what we practice in Washington. In reality, the Senate has become a battleground to determine who's better at manipulating the rules. The party that wins gets to decide if a bill becomes a law.

For the minority, everything depends on their skill with Rule XXII. For the majority, it's all about their understanding of the budget reconciliation process. For the country, it's a mess.

Rule XXII is more commonly known as the filibuster. In theory, the filibuster is there to protect the minority's ability to speak its mind. This was particularly important in the days before airplanes and television cameras. The majority could rush something to a vote while crucial members of the opposition were back home in their states. The filibuster gave the minority time to slow the process and rally its troops.

As time went on, the filibuster became more common as a tool of pure obstruction. In 1917, Woodrow Wilson convinced the Senate to limit it: Now, two-thirds of the Senate could vote to invoke "cloture," which would close debate. In 1975, Congress lowered the threshold to three-fifths of the Senate, or 60 votes.

In theory, the filibuster should have become less prevalent as it became easier to break. But it instead became constant. Between 2007 and Friday, the Senate had to call 216 cloture votes to break filibusters. That's more than it had to call between 1919 and 1976.

There's a simple story about why the minority party has started demanding more cloture votes even when they know they'll lose them. After a call for cloture, the Senate must wait two days to take the vote. After lawmakers vote, they must take 30 hours of post-cloture debate. And filibusters can be mounted against the motion to debate, on amendments, on the vote on the bill itself . . . on everything, really. A single, committed crank can waste weeks forcing the majority to break his filibusters.

But the filibuster can, in certain circumstances, be defused. The budget reconciliation process was created in the Budget Act of 1974. Back then, Congress passed a budget at the beginning of the year and then an updated version at the end of the year. Budget reconciliation was a way to, yes, reconcile the two versions faster than would be possible under the ordinary rules. It limited debate to 20 hours, and since the filibuster is nothing but an endless lengthening of debate (or a threat to do so), it short-circuited the filibuster.

Congress doesn't pass two budgets anymore, and reconciliation, like the filibuster, has expanded beyond its original purpose: It's been used to pass the Bush tax cuts and Reagan's tax increases, welfare reform, the Balanced Budget Acts of 1995 and 1997, the Children's Health Insurance Program and COBRA, and much more. Of the 21 reconciliation bills that have passed since 1981, 16 have been signed by Republican presidents. So the GOP's feigned astonishment that the maneuver might be used to pass a few fixes to health-care reform legislation rings hollow.

But reconciliation has its problems. It's limited to provisions with a direct impact on the federal budget, and a rule passed by Democrats further limits it to laws that reduce the deficit (a response to Bush using reconciliation for budget-busting tax cuts). That means that to activate the 51-vote magic, legislators have to write specific bills that abide by the rules of reconciliation. That's fine for a tax change, but it wouldn't work for, say, regulating private insurers. Disagreements are settled by the Senate parliamentarian, Alan Frumin, who acts as umpire in rule-related disputes. (The parliamentarian can be overruled by the vice president, though that doesn't happen in practice).

This is the consequence of running the Senate by twisting the rules. It's not just that you have the 60-vote filibuster process competing against the 51-vote reconciliation process. It's that you have the Senate wasting days and weeks in cloture votes for doomed filibusters and rewriting legislation to conform to the odd limits of reconciliation. And as the minority becomes less responsible with the filibuster (and oh boy, have minority Republicans become less responsible with the filibuster), the majority needs to use reconciliation more often.

Even a kid in civics class would recognize that this is all nuts. The Senate should return to majority rule, or it should decide to raise the threshold to 60 votes. But treating the laws of the body like an arsenal rather than a road map is making the Senate slow, unwieldy and incomprehensible. It's no way to run a country.

Ezra Klein blogs on domestic and economic policy for The Washington Post, at washingtonpost.com/ezraklein.


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