No, The Jobs Bill Doesn't Highlight The Senate's Culture of Failure

Today The Washington Post carries an article entitled "Jobs Bill Highlights Senate's Culture of Failure."

According to the article:

The failure of President Obama’s jobs proposal highlights Washington’s current culture of gridlock, transforming the Senate from a balky, but functional, legislative body into a strange theater of failure.

As the premier Senate/Capitol Hill blog on the web, we feel compelled to respond to this terrible opinion piece in one of our nation's newspapers of record. Here's why we wouldn't change a thing about the Senate:

(1) The 60 vote threshold is absolutely necessary to protect minority rights.
We typically expect a majority party in the Senate to come in with somewhere between 51 and 60 seats. It would therefore be easy to pass and restrict debate on any measure solely with majority party votes. This may be OK in the House of Representatives, but our system of constitutional checks and balances requires that somewhere in the legislative system there should be an opportunity for the minority party to be heard. The 60-vote threshold forces the majority party to moderate its bills and negotiate with the minority party. It puts greater emphasis on individual moderate Senators in both parties. Like anything else, the failure of the Senate is a failure of politics and human nature. Don't blame an institution that preserves vital safeguards. Remember - everyone is in the minority sometimes.

(2) There is nothing particularly legitimate about a 51 vote victory.
We talk about 51 votes as if it is the essence of democracy and representation. Not true. Think about it - what would be the most legitimate form of representation? It would be unanimous consent, where every single voice counted in the outcome. That would be 100 votes in the Senate. Now, on the other end of the spectrum, what would be the most efficient outcome that still involved "most" of the voices? It would be 51 votes. The 51 vote margin has not been endowed with any particular legitimacy. The Senate rightly balances legitimate consensus and efficiency with a 60 vote margin. This is American democracy. It SHOULD be hard to pass a bill.

(3) The House of Representatives is always more obstructionist than the Senate.
People who dislike the way the Senate operates often call it obstructionist and point favorably to the House, which appears to consider everything quickly and with an up or down vote. In fact, the House is more obstructionist than the Senate. Most people don't realize it because obstruction in the House of Representatives is built into the rules and happens before anything reaches the floor.

Want to know how you pass a bill in the House of Representatives? First, you can use unanimous consent, which obviously requires complete consensus and is used very infrequently. Secondly, you can use suspension of the rules to pass uncontroversial measures such as naming post offices, which requires a two-thirds vote of the entire House of Representatives. But if you want something considered with a majority vote on the floor of the House of Representatives, you need to go through the House Rules Committee. This is a committee consisting of 9 members of the majority party and 4 members of the minority party. The committee is tasked with reporting a "rule" for each piece of legislation that it likes. This controls the time for debate and exactly what amendments may be offered. The amendments are often the only chance for the minority party to be heard on a bill, but the committee can completely lock the minority party out of the amendment process through a "closed rule."

So, compare this with the Senate. In the Senate, you can use parliamentary procedure to be heard, but a measure that has 60 votes will pass. This is 60% of the whole Senate. In the House, to get majority consideration, you need to get approval from a committee that has 9 loyal members of the majority party and only 4 members of the minority party before even reaching the floor. This is about 70% of a committee that is practically an arm of the Speaker's office. This renders individual representatives and members of the minority party effectively pointless.

To us, this looks more "obstructionist" than Senate behavior.

(4) There was somehow something wrong or illegitimate about the failure of the American Jobs Act in the Senate yesterday.
The Washington Post's article comes in the wake of the failure of the American Jobs Act to clear the 60 vote cloture rule. But what is surprising about this? Senate Democrats surely knew that they couldn't get the 7+ additional Republican votes to pass a version of the American Jobs Act that they didn't really negotiate with the Republicans. Yesterday's move was supposed to put Republicans on the record in opposition to the American Jobs Act so that Democrats could campaign against their votes.

Further, it's not fair to single out the Senate's "culture" and rules because of yesterday's failure. How far do you think the same bill would have gone in the House of Representatives.

Opponents of the Senate must take a closer look at the reality of Congress and learn to respect the traditions of the world's greatest deliberative body.

Did Senator Reid Invoke The Nuclear Option? Senate Procedure Analysis

Today Senator Harry Reid and Senator Mitch McConnell had a bit of a fight over offering amendments to a China currency manipulation bill. The resulting vote will change the way the Senate operates. We'e heard lots of false claims, so we want to set the record straight with a procedure guide to what happened.

(1) First of all, what Senator Harry Reid used was nothing remotely close to the "nuclear option." It did not change any filibuster or voting traditions.

(2) Instead, Senator Reid's maneuver affects amendments offered after any filibuster should have ended with "cloture," which is a timetable to end debate invoked with 60 votes in the Senate.

(3) Furthermore, the maneuver had absolutely nothing to do with the consideration of the American Jobs Act, but with the bill dealing with Chinese currency manipulation.

Here's exactly what happened on the Senate floor that day in terms of procedure. We're the only ones to get it right.

Cloture Invoked
The Senate had earlier invoked cloture on a bill dealing with Chinese currency/exchange rate manipulation. Cloture creates a timeline to end debate on a bill. Once cloture has been invoked, irrelevant amendments are out of order. Further, all first and second degree amendments must be offered by a certain time. Before cloture is invoked, amendments may be considered not withstanding these rules.

Motion To Suspend The Rules
In order to have further amendments considered during this time, Senators need to file motions to suspend the provisions of Rule 22 of the Standing Rules of the Senate (the formal articulation of the cloture rule. The motion to suspend the rules waives the provisions of certain rules if agreed to through a two-thirds vote, but it was rarely used to circumvent cloture rules until recently. Republicans had inundated the bill under consideration with non-germane amendments considered under this bill and in violation of the timetable to end debate. Senate Majority Leader Harry Reid (generously, in our opinion) agreed on seven non-germane Republican amendments that could be considered under this unusual parliamentary procedure.

Unanimous Consent
The conflict erupted when Senator Reid asked for unanimous consent to have seven amendments considered under suspension of the cloture rules and Senator McConnell objected on the grounds that Senator Reid had substituted a different Republican amendment for an amendment that the two had agreed to consider under the rules.

Point of Order To Change the Senate Precedents
Here's where it gets hairy: The Senate operates under both formalized rules and precedents. The easiest way to understand it is to analogize: think of the rules as the exact text of the Constitution and the precedents as the rulings of the Supreme Court on interpretation.

Senator Reid therefore brought up the motion to suspend the rules on one of Senator Tom Coburn's amendments and raised a point of order against it on the grounds that using the motion to suspend the rules to force consideration of non-germane amendments after the cloture timeline for ending debate has been invoked. The Chair ruled against this point of order, at which point a vote of the Senate overruled his judgment.

Therefore, the Senate is today left with a momentous new precedent: motions to suspend the rules for post-cloture consideration of non-germane amendments are now dilatory.

Feel free to send your questions and comments to us.