Skip to main content

Three reforms to unstick the Senate

By Sarah Binder, Special to CNN
updated 10:14 AM EST, Thu November 29, 2012
Senate Majority Leader Harry Reid answers questions November 27 about his campaign to deter filibustering.
Senate Majority Leader Harry Reid answers questions November 27 about his campaign to deter filibustering.
STORY HIGHLIGHTS
  • Sarah Binder: Minority has always exploited filibuster rules to hang up rival proposals
  • Reid's plans to reform procedures have faced tough opposition, she says
  • Binder: Senate should set limits on filibuster rules that are fair to each party
  • Binder: Confirmation process is glacial and contentious and needs "fast-track" option

Editor's note: Sarah Binder is a senior fellow at the Brookings Institution and professor of political science at George Washington University. She is the co-author of "Politics or Principle? Filibustering in the United States Senate" (Brookings 1997) and several other books on Congress.

(CNN) -- "We are now locked in a rolling filibuster on every issue, which is totally gridlocking the U.S. Senate. That is wrong. It is wrong for America."

Who said that? Democrat Harry Reid, majority leader of the Senate? Guess again. Try former Republican leader Trent Lott, bemoaning the troubled state of the Senate in the late 1990s.

Sarah Binder
Sarah Binder

No recent majority leader of either party has been saved the headache of trying to lead a Senate in which minorities can exploit the rules and stymie the chamber. This is not a new problem. Harry Reid may face a particularly unrestrained minority. But generations of Senate leaders from Henry Clay to Bill Frist have felt compelled to seek changes in Senate rules to make the chamber a more governable place.

Some things never change.

Twice this week, the Senate has opened debate with its party leaders engaged in a caustic battle over Reid's plans to seek changes to Senate rules in January.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



Reid argues that Republicans have engaged in unprecedented levels of filibustering. GOP leader Mitch McConnell blames what he calls Reid's weak leadership, arguing that Republicans' parliamentary tactics are a natural response to Reid's partisan ways.

There is no innocent party in the parliamentary arms race that engulfs the Senate. Still, many argue that Republicans go overboard in their willingness to exploit Senate rules. Indeed, since 2007, Senate records show that Republicans have filibustered or threatened to filibuster more than 360 times, a historic record.

Reform of the Senate is overdue. In 1997, with Republicans controlling the Senate, author Steven Smith and I advocated reforms that sought to trim the filibuster while preserving minority rights. Today, with Democrats in control, I again think changes in Senate rules are due:

Senate should limit the number of motions subject to a filibuster

A top priority should be to eliminate filibusters of the "motion to proceed" to a bill and the three motions that are required to send a bill to conference with the House.

When the majority seeks to call up a bill on the floor for consideration, the leader offers a motion to proceed. Because Senate rules deem this motion "debatable," it takes 60 votes to cut off debate and come to a vote on the motion.

Banning the filibuster on this motion would still allow a minority to filibuster the underlying bill and amendments to it. But it would give a majority the right to set the chamber's legislative agenda. The change might also rein in senators' secret "holds" because the majority leader would no longer need broad support to advance a bill to the floor.

Similarly, debate could be trimmed by banning filibusters on the three steps required to send a bill to conference with the House. Conference committees have gone the way of the dodo bird because minorities have been willing to filibuster the steps required to send bills to conference.

Banning such filibusters would encourage the use of conference committees and restore the involvement of rank-and-file senators in the process of negotiating bicameral agreements. Senators would still retain the right to filibuster agreements that emerged from conference.

Ratchet down the number of votes required to invoke cloture

The first cloture vote would require 60 votes, as is required under Senate rules.

If that failed, the next vote would require 57 votes, then 54 votes, and so on, until the Senate reached a simple majority vote for cloture. To guarantee the minority adequate time to debate and amend bills, I would tie the number of days of advance notice of a coming cloture vote to the number of votes required for cloture. The fewer the votes required, the longer the advance notice. Coupling new cloture thresholds and notice requirements would allow the Senate to reach votes by simple majority while still protecting the minority's parliamentary rights.

Senate should experiment with new modes of advice and consent for nominations

The confirmation process is a mess, with nominees often waiting months for hearings and confirmation votes.

The Senate should consider new "fast-track" confirmation rules. For executive branch appointees, the fast track might fix the length of Senate consideration, guaranteeing a confirmation vote within, say, three months. For judicial nominations, fast-track consideration might be given to candidates recommended by bipartisan commissions in their home states.

Zelizer: Gridlock in Congress? Blame the GOP

If the White House nominates a candidate approved by such a commission, the Senate would fast-track the nominee to a confirmation vote. Fast-tracks protect the minority's right to scrutinize presidential appointees, but ensure that nominees are guaranteed confirmation votes within a reasonable period of time.

Such reforms would restore some semblance of balance to the Senate. For that reason, the minority party is likely to oppose them. Even members of the majority might balk at trimming their procedural rights.

That is the unfortunate history of Senate reform: Senators rarely want to give up their parliamentary advantages. Because changes to Senate rules can be filibustered, efforts to reform the Senate typically crash and burn. Under some conditions, majorities can avoid filibusters of their reform proposals by using what senators term the "constitutional option."

But as this week's outrage on the Senate floor suggests, the process of an overhaul can be as explosive as the actual reform. There's no easy path.

Follow @CNNOpinion on Twitter

Join us at Facebook/CNNOpinion

The opinions in this commentary are solely those of Sarah Binder.

ADVERTISEMENT
Part of complete coverage on
updated 1:33 AM EST, Thu December 25, 2014
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
updated 6:12 PM EST, Tue December 23, 2014
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
updated 8:36 AM EST, Wed December 24, 2014
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
updated 2:14 PM EST, Wed December 24, 2014
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
updated 3:27 PM EST, Tue December 23, 2014
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
updated 10:35 PM EST, Tue December 23, 2014
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
updated 7:57 AM EST, Tue December 23, 2014
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
updated 11:29 PM EST, Mon December 22, 2014
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
updated 4:15 PM EST, Tue December 23, 2014
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
updated 1:11 PM EST, Tue December 23, 2014
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
updated 1:08 PM EST, Mon December 22, 2014
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
updated 1:53 PM EST, Sat December 20, 2014
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
updated 3:19 PM EST, Sat December 20, 2014
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
updated 5:39 PM EST, Mon December 22, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
updated 2:51 PM EST, Thu December 18, 2014
Jeff Yang says the film industry's surrender will have lasting implications.
updated 4:13 PM EST, Thu December 18, 2014
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
updated 7:55 AM EST, Wed December 10, 2014
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
updated 12:34 PM EST, Thu December 18, 2014
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
updated 8:42 AM EST, Thu December 18, 2014
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
updated 12:40 PM EST, Tue December 16, 2014
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT