THE demise of President Clinton's economic stimulus package brought to public attention the peculiar rules of the United States Senate. The Senate has no general rule that limits debate. Instead, it has Rule 22, which requires three-fifths of all senators - 60 in the current Senate - to vote to close debate. And the Senate has no general rule that requires that amendments to legislation be germane to the pending legislation.
In recent years, these rules have fueled hyperindividualism and petty obstructionism in the Senate. Pressured by lobbyists and eager to demonstrate their commitment to key constituency groups, senators have abused their parliamentary privileges and undermined the role of the Senate as a policymaking body.
The change is reflected in the number of times the cloture motion - a motion to close debate and bring a matter to a vote - has been subjected to a vote. The period from 1919 to 1970 saw a total of 50 cloture votes - less than one a year. The 1971-92 period saw 295 - more than 13 a year. The 102nd Congress, 1991-92, set a record with 48 cloture votes. Even the motion to take up a bill on the floor is now subject to obstructionism. From 1977 through 1982, only six cloture votes on the motion to proceed to
the consideration of a bill took place; in 1991 and 1992, the Senate cast 35 such votes. These numbers only scratch the surface of obstructionism that is commonplace in today's Senate.
In this year of political reform, it is time for senators to take stock of their institution and adopt essential changes in their rules. The current rule allows three-fifths of all duly elected and sworn senators - 60, if all seats are filled - to invoke cloture, except on matters pertaining to Senate rules, for which a more stringent two-thirds majority of those present and voting is required. Rule 22 is not strong enough. Its unfortunate effects are seen every day in the Senate's dependence on unanimou s-consent agreements and the perverse practice of holds.
Since before the Civil War, Senate floor action on major legislation has been governed by formal unanimous consent agreements. In the modern Senate, the majority leader seeks unanimous consent to bring a bill to the floor and often seeks consent to structure debate and action on agreements. In the absence of general rules limiting debate and amendments, unanimous consent is the only recourse. So a simple request for unanimous consent to limit debate or amendments is the standard approach. Dependence on u nanimous consent to lend some order to floor activity also means that a single senator can upset the leader's plans. Consequently, the majority leader consults with the minority leader and other interested senators before seeking consent on all but the most routine questions. In recent decades, this process of anticipating and recording objections has become institutionalized. Well-understood routines are in place for senators to register objections, reservations, and concerns about requests to take up bill s, nominations, and even treaties.
The registered objections are known as holds, reflecting their potential effect on legislation. Most holds delay floor consideration of legislation. Rather than risking objections to his unanimous consent requests, or a filibuster, the majority leader usually attempts to get the objecting senator to release a hold.
As recently as the early 1960s, senators did not threaten filibusters with much frequency. They tended to reserve the filibuster for the most important issues. For Southerners, this meant using the filibuster against civil rights legislation and some labor legislation, but little else. Senators did not use holds with much frequency or effectiveness.
But as the political world changed so did Senate behavior. Senators responded to their new world by taking on more committee assignments, expanding their staffs, adding travel funds, and upgrading their office technology. Their schedules are now shaped more by personal agendas: campaign needs, interest-group demands, personal staff, obligations to meet constituents, speaking trips. And more trips home, state-based offices, polling, and constituency mail have made senators more sensitive, even hypersensit ive, to public opinion. Extreme individualism is the result.
The external orientation of many senators has radically altered floor politics in the Senate. Pressed by constituents and lobbyists, and motivated to grab a headline, senators now more routinely and more fully exploit their procedural prerogatives than at any other time in the Senate's history. Filibusters, multiple amendments, and holds are all-purpose tools to gain leverage over committee chairmen, the leadership, and the administration. To cope with these circumstances, the majority leader is forced t o conduct extended negotiations with the minority leader, and sometimes more than a dozen senators, to get routing bills before and through the Senate. He must spend hour after hour negotiating closing agreements that make the Internal Revenue Code seem simple. The agreements represent the effort of the majority leader to lend some predictability to floor action, expediting final action on bills by preventing obstructionism whenever possible, minimizing the effect of a filibuster on the consideration of oth er legislation, and juggling several pieces of legislation on the floor simultaneously - all while being sufficiently accommodating to gain unanimous consent.
In order to keep other legislation moving while some bill is being filibustered, the majority leader often seeks and receives consent to temporarily set aside the filibustered bill. But this reduces the pain inflicted on senators by a filibuster and increases their chances of success. The net effect may be to encourage filibusters.
Recent majority leaders - four in a row - have announced that holds are not binding on the leader and represent nothing more than a request for advance notification of floor action. These pronouncements have made little difference. Despite their frustration with holds, all four leaders found it convenient to observe holds most of the time. Why? For one thing, the incentives for senators to abuse their parliamentary prerogatives are strong. Campaign contributors, lobbyists, and even the administration con tinue to reward senators who do their bidding. And the Senate's ideologues care little about inconveniencing their leaders and colleagues. An edict from the majority leader does not change this condition. Teaching the Senate a lesson by forcing action against the will of a senator or two is likely to be a lesson that lasts only a few days. In any event, alienating a few senators by spitefully ignoring their holds may cost too much in subsequent cooperation to be worth the effort. Their support is needed for
even the most routine of the leader's unanimous consent requests.
The bottom line: A changing political context has made dysfunctional many rules and practices that once seemed well adapted to senators' individual purposes and the Senate's collective needs. Even leaders with the greatest intellects, creativity, and perseverance have not prevented the Senate from deteriorating as a policymaking body.
In the next few months, the Joint Committee on the Organization of Congress will be devising proposals to improve the operations of the House and Senate. The Joint Committee should propose three sets of reforms for Senate floor procedure:
First, a simple majority should be allowed to adopt a motion to proceed to the consideration of a bill or conference report. Moreover, a simple majority should be allowed to bring debate to a close after a lengthy period of debate, say three days. The right to debate and offer amendments should be protected; the right to avoid direct votes on important matters should be eliminated.
Second, a simple majority should be able to put a bill or resolution on "a straight track," a limited period of time, during which debate would be limited and amendments must be germane to the legislation. Before and after the Senate considers legislation on the straight track, senators' current rights would be preserved. Most debate on legislation would occur in a more controlled and predictable setting.
Third, holds should be reduced by making it more difficult for a single senator to object to a floor leader's request to call up a measure, limit debate, or limit amendments. The objections of at least five senators should be required in order to block such a request. If this were done, along with curbs on obstructionist quorum calls, the disruption caused by personalistic holds would be reduced.
Senate procedures have undermined the chamber's special policymaking functions. Now is the time for us to insist that the Senate act to reform itself. But there is no reason to be optimistic about the prospects of meaningful reform. After all, any significant reform proposal will be filibustered. Reform is possible only if the public demands that the Senate change its ways.