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Here is something you can count on: at one time or another, House members and senators will blame Senate rules for the lack of progress in Congress.
People across the fruited plain agree.
Most people do not understand the complex rules of the Senate, but they do understand that very little is moving in Congress because of the upper body. The American people see the glacial pace of the Senate as out-of-touch with a 21st century era of instant communication and a fast-moving 24/7 news cycle.
The genesis of this frustration stems from Senate rules that provide a minority of senators the ability to grind the Senate to a complete halt. As the Republican majority is now experiencing – just as the Democratic majority did before it – Senate rules can be a massive impediment to the majority party’s ability to quickly push through their complete agenda.
But the glacial pace is part of the design of the Senate, not the enemy. Deliberation is the goal, not speed.
Over time, Senate rules have been carefully crafted and intentionally designed to provide the minority party and individual senators immense legislative power. The Founders designed the Senate to be a check on the “tyranny of the majority” and believed the passage of legislation should be difficult. Check: they’ve accomplished their mission.
As several of my fellow conservative colleagues have correctly pointed out, the Senate filibuster has been absolutely critical in slowing the rapid expansion of the federal government. One only needs to look at the Affordable Care Act, which passed when the Democrats had a filibuster-proof majority, to see the acrimony and disastrous consequences of single-party rule. Genuine deliberation can and should stop poorly written and emotional legislation.
But, something has fundamentally changed in the past 20 years. Instead of Senate rules being utilized to protect the rights of the minority, they have been repeatedly employed to stymie simple debate on legislation and votes on amendments. This cannot continue.
The minority party’s interference with motions to proceed (the motion to start debate) and the majority party’s ability to thwart amendment consideration are the hallmarks of a dysfunctional Senate – with both sides pointing the blame towards the other. As a result, the Senate no longer deserves the moniker of the “greatest deliberative body in the world.”
Fortunately, senators can do more than just complain. The Constitution allows senators to change the rules of the Senate. Article 1, Section 5 of the Constitution reads, “Each House may determine the rules of its proceedings…” The Senate standing rules provide that the Senate may amend the rules with the agreement of 67 senators.
Eighty-seven members currently serving in the institution have experience being in the Senate majority and minority, but all 100 know there is a problem.
With a contentious election this fall, no one knows whether Republicans or Democrats will lead the Senate one year from now. The next few months provide a unique opportunity for all 100 senators to take a neutral, objective look at Senate rules, and explore improvements that are agreeable to both sides of the aisle.
Any rules discussion should begin with agreement that the legislative filibuster is paramount to the uniqueness of the Senate and our system of checks and balances. It should be vehemently protected.
But, almost every bill in the Senate requires two votes of 60 senators – one vote to start to debate (motion to proceed) and another vote of 60 to end debate and then pass the bill. But I believe a change to this self-defeating system is needed. If the first vote to open debate was instead a simple-majority decision (requiring 51 senators to pass it), the second vote could still require 60 votes in order to protect minority party rights. If the minority does not agree with the debate or the bill, it could still shut the measure down before the vote on final passage.
We should change Senate rules for the voting threshold to begin debate on any bill with a simple majority, while allowing the consideration of more amendments and multiple bills during the same period of time. Rather than falling back on rules that duck debate or avoid difficult votes, the Senate could operate under the expectation that both will occur. This will allow the Senate to continue to function despite areas of passionate disagreement in an open process.
That would certainly be a revolution. We all should want debate and amendments on bills.
I firmly believe the Senate should see more voting and debate and less standing around and waiting for backroom deals. Sunlight and real debate can fix many of the budget and legal issues our nation currently faces. But, changing Senate practice means pushing against the status quo that empowers a well-placed few.
When the Senate cannot debate and amend, people lose their voice in our representative government — and the American people watch the President take the open lane to expand executive authority. As the Senate argues over procedure, the President pushes the legal boundaries, unchecked by a legislative branch that used to jealously protect its power. To regain our Constitutional oversight and the power of the purse, the legislative branch must get back to fighting on the Senate floor over legislation, not just fighting its battles through the media.
There is no Senate rules change capable of bridging some of the massive differences in opinion that exist in our nation. But hopefully, we can agree that supporting reforms allowing more open deliberation would benefit the nation.
We have a lot of serious issues facing our country. It’s time the Senate floor be the place where ideas can be offered, debated, and voted on to solve our problems rather than just complain about them.
James Lankford is a Republican senator from Oklahoma who was elected to the Senate in 2014. He is part of a working group considering Senate rules changes.