About the Author: Evan Chiarelli is a third year law student at American University- Washington College of Law. Evan graduated from the University of Missouri and hopes to work on the Hill on housing policy after graduating law school.
The United States Congress is fatally unproductive. In each session of Congress, an overwhelming majority of legislation fails to pass into law despite persistent and pressing national issues.[1] This extreme failure to legislate has made Congress less popular than lice, colonoscopies, and Nickelback.[2] This is especially true in the United States Senate, described by some as the world’s “most deliberative legislative body.” These inefficiencies are exacerbated as the United States lurches from crisis to crisis and requires quick legislative action to remedy these emergencies.
A breakdown in norms and traditions that empowered Senators to legislate through relationships and collegiality make it difficult to enact sweeping legislation. The bicameralism and presentment requirements force legislation to weave through a politically and procedurally complex legislative process. Today, however, legislation often has to make it through a “super-majoritarian” Senate. Senate Rule XXII, known as the Cloture rule, requires “two-thirds of those present and voting [to] agree in order to end debate.”[3] In a hyper-partisan environment that is exacerbated by a breakdown of trust and collegiality between the individual Senators, it is difficult to build a coalition of sixty Senators to invoke cloture and end debate.[4] While super-majoritarian rule is required for incredibly consequential acts such as impeachment of an executive official and veto overrides, “there is compelling evidence that those who wrote our Constitution believed in simple majority rule for ordinary legislation.”[5] In fact, it was this requirement of super-majority approval for legislation that doomed the Articles of Confederation and left the weak federal government stagnant.[6]
Two recent examples illustrate how Congress, and the Senate specifically, failed to pass meaningful legislation during national emergencies. First, with General Motors and Chrysler on the verge of bankruptcy in the middle of the 2008 financial crisis, the Bush Administration proposed a plan to “provide loan guarantees to the automakers.”[7] After a deal was negotiated between Congressional leaders and the President, the bailout bill passed the House of Representatives. Upon arrival in the Senate, despite Senate leadership and a majority of Senators approving of the legislation, “the package stalled . . . where the majority fell eight votes short of cloture.”[8] After seeing the bill fail in the Senate, the President took executive action and “extended the loans anyway,” a blow to bicameralism as the President explored new legal tactics to subvert Congress.[9]
This was not the only time during the 2008 financial crisis that Executive officials looked to avoid Congressional approval of their action, knowing they would not receive it in time to save the shuddering economy. As the recession was raging, the Federal Reserve took extraordinary action, “pushing the boundaries of its emergency authority under the Federal Reserve Act” by investing in “commercial paper and mortgage-backed securities” and deciding the “fate of a number of large financial institutions.”[10] Described by some as the “most important actions taken to deal with the crisis,” Congress was cut out of the decision-making process because Federal Reserve Chairman Ben Bernanke conceded he would never get Congressional approval if he needed sixty Senators before acting.[11] This is a total degradation of the checks and balances instilled in the Constitution.
Several scholars and members of the Senate have argued for reforms to procedure that could help repair the fractured chamber. In his final address to the Senate before his death, Senator John McCain (R-AZ) pleaded with his colleagues to return to “regular order.”[12] This amorphous term refers “to the rules and precedents that have been followed” in the Senate for generations, but also “a state of mind” that presumes “bipartisanship.”[13] Other scholars have advocated for a reinstalling simple majority control over rules and procedures in the Senate. Under Article I, § 5, the Senate has sole authority to determine the “Rules of its Proceedings.”[14] Known as the Rulemaking Clause, this power ensures that each chamber of Congress can create rules and procedures just as unique as the respective chamber and that “each group of legislators in successive Congresses has the power to determine its own rules of procedure.”[15] Under this framework, Rule XXII is a constitutional anomaly and “violates the Rulemaking Clause.”[16] By allowing the majority to change the filibuster rule to only require a simple majority to invoke cloture for all filibusters, the Senate could break its trend of super-majoritarianism and legislative effectively while also allowing for Senators to exercise their unique individual powers.[17] This solution is not without its critics, who believe the sixty-vote threshold makes the body “uniquely valuable” that protects against tyranny of the majority.[18]
231 years after the ratification of the Constitution, the breakdown of norms and precedents that have guided legislative action in the Senate during times of national crisis has recreated the super-majoritarian requirement that the framers sought to avoid. The consequence is an inactive government during times that require immediate action. Reforms to Senate procedure and a return to regular order may be the only remedy if there is any hope in restoring the most deliberative body.
[1] Josh Huder, Our Very Unproductive Congress, The Gov’t Affairs Institute (2013), https://gai.georgetown.edu/our-very-unproductive-congress/.
[2] Id.
[3] Id. at 2197.
[4] See John C. Roberts, Gridlock and Senate Rules, 88 Notre Dame L. Rev. 2189, 2198 (2013).
[5] See Id. at 2197.
[6] See Michael Paulsen & Luke Paulsen, The Constitution 8 (2015)
[7] See Frances E. Lee, Senate Deliberation and the Future of Congressional Power, 43 Political Sci. & Politics 228 (2010).
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] See Ron Elving, What is The Regular Order John McCain Longs to Return to On Health Care, NPR (July 26, 2017), https://www.npr.org/2017/07/26/539358654/what-is-the-regular-order-john-mccain-longs-to-return-to-on-health-care
[13] Id.
[14] See John C. Roberts, Gridlock and Senate Rules, 88 Notre Dame L. Rev. 2189, 2198 (2013).
[15] Id.
[16] Id. at 2199.
[17] Id.
[18] See Frances E. Lee, Senate Deliberation and the Future of Congressional Power, 43 Political Sci. & Politics 228 (2010) (citing a quote from then-Minority Leader Mitch McConnell who discussed how he see super-majoritarianism as a benefit to the minority party).
