Read Between the Lines: Maintaining the Unwritten Rules of the Senate

Since the opening of this year’s Senate session, the body has faced an uncharacteristic amount of drama prompted by the President, the public, the Democrats, and the Republicans. Interestingly, it has largely revolved around one unexpected aspect of the Senate: its rules. The Senate, unlike the House of Representatives, does not operate by majority rule; rather, 60 votes are required to override a filibuster and thus pass most legislation. This rule allows the most agreeable wing of the minority party to continue to have influence, preventing rash and extreme legislative decisions while maintaining the spirit of the legislation initially introduced by the majority. This important aspect, among a few other rules, has earned the Senate the (largely self-proclaimed) title of  “World’s Greatest Deliberative Body.” That title, however, is now under threat. Over the last several months, typically obscure subjects such as Rule XXII (widely known as The Filibuster Rule), Rule XIX (the rule that forced Elizabeth Warren off of the floor during the debate on the nomination of Jeff Sessions), and the Byrd Rule  (which lowers budget reconciliation votes to a simple majority), have been thrust into the spotlight. The result: widespread political and public rejection of these long-established rules, a rejection that threatens to destroy an important limitation on Congress.

Before one can understand why the integrity of these rules is important, one must first understand where the rules derive their power from. The Senate operates on a set of mostly ill-defined and archaic rules that are largely interpreted in the context of norms. These norms fill the gap between the vague rules and the precise procedures necessary to run a body of intense debate. They are integral to the daily operation of the Senate and are the foundation of the title “World’s Greatest Deliberative Body.” Since Senate rules take a ⅔ majority to change, and because no single political party has had a ⅔ majority in the last 50 years, the most feasible way of altering Senate procedure is by creating new norms and precedents. Therefore, norms are often challenged within the Senate. Due to the impactful nature of the interpretation of Senate precedents, the nonpartisan Office of the Parliamentarian was created in 1935 to settle disputes over the precedents and rules of the Senate. Disturbingly, despite the creation of this office, the presiding officer still has the final say in rulings. In a time when partisanship trumps tradition, the presiding officer of the Senate has the power to reject a ruling of the Parliamentarian, altering the precedents of the Senate simply to score a legislative or political win.

To see an example of how norms affect the Senate, we can look to February 8th, 2017, when Elizabeth Warren was ordered to be removed from debate on the Jeff Sessions nomination under Rule XIX. If you watch the video of the dramatic moment, the Senate Parliamentarian Elizabeth Macdonough can be seen and heard whispering a set of procedural language to Senator Steve Daines, the presiding officer who then states, “The rule implies that imputing conduct or motive through any form of words to a sitting senator. Form of words includes quotes, articles, or other materials.” Daines accused Warren under Rule XIX of imputing to Sessions “conduct or motive unworthy or unbecoming a Senator.” Although Rule XIX can be called by any Senator, it has rarely been deployed. Warren’s reading of a letter written by Coretta Scott King and Edward Kennedy attacking Jeff Sessions might appear to be Warren simply bringing a historical document to the floor of the Senate, the act of which is quite common. However, Macdonough’s specification of offenses to include “quotes, articles, or other materials,” supported by a precedent set in the 1950s when a Senator was silenced for reading a newspaper article impugning another Senator on the floor, implicates Elizabeth Warren in violating Rule XIX.

While Rule XIX may seem like a petty fight over semantics, the aforementioned Byrd Rule has legislative consequences. On July 27th, Macdonough and the Office of the Parliamentarian ruled several provisions of the Republican Healthcare bill invalid under the budget reconciliation process. Macdonough pointed to the Byrd Rule, which prevents budget reconciliation for bills that aren’t germane to the budget deficit. What ensued was a media whirlwind, one atypical of Macdonough who works diligently to avoid the spotlight. Ted Cruz suggested simply ignoring Macdonough’s ruling, a procedural maneuver which, according to former Parliamentarian Robert Dove, has not been done since 1975. Ultimately, Republicans decided to leave the ruling intact, bringing the Senate back from the brink of parliamentary collapse.

Poor and hasty process will almost always lead to bad outcomes.

Finally, the infamous nuclear option demonstrates a great threat to the filibuster, considered by many to be the defining feature of the Senate. This option was first used by former Senate Majority Leader Harry Reid in 2013 for the confirmation of the presidential cabinet and federal judges, and has since been expanded to the confirmation of Supreme Court Justices by current Senate Majority Leader Mitch McConnell. The nuclear option is an alternate interpretation of Rule XXII, which allows the Senate to end debate with a simple majority rather than 60 votes. While Rule XXII explicitly states that 60 votes are required to conclude debate, Harry Reid wound through a maze of procedural regulations to turn 60 votes into a simple majority. He first made a motion for presidential cabinet and federal judge nominations to be considered on a simple majority, and when that motion was rejected by fellow Democrat Patrick Leahy, he appealed the ruling of the chair. Since appealing the ruling of the chair only takes a simple majority, Reid could then move confirmations forward with another simple majority. Not a rule was changed, but Reid’s motion for implementation of a majority standard for cabinet nominations and federal judge positions became the new precedent of the Senate.

The removal of the filibuster in cabinet confirmations has lead others to question the need for Rule XXII at all. President Trump has expressed his disdain for the filibuster rule in a number of tweets. While it is unlikely that the filibuster will be changed through the traditional format of Senate rules, there is an alternative route to circumvent regular order by essentially changing the Senate rules during the brief period before the rules go into effect at the beginning of the session. Although Mitch McConnell has stated publicly that he will not eliminate the Senate filibuster, given the partisan environment and Presidential disapproval of the rule, it is important that voters understand the implications of destroying the filibuster. Rule XXII’s 60 vote threshold is a staunch protection from tyranny of the majority. It gives voice to the minority and creates legislative stability, preventing bills from being repealed shortly after their signing in the event of a wave election. It is essentially the lifeblood of the Senate, and creates a time delay in the legislative process while the majority attempts to haggle for votes with the opposition that allows constituents to organize in support or protest.

Poor and hasty process will almost always lead to bad outcomes. The Senate was created with the vision of George Washington to be the saucer in which hot tea is poured to cool. If the Senate is a place of deliberation and reflection where this proverbial tea can cool, the House of Representatives is the pot in which it boils. Unlike the Senate, the House’s rules are created each session by a rules committee allowing the majority to control just about every aspect of the body. Since the majority has such widespread control, it pushes legislation through with extreme haste in an effort to accomplish as much as possible in the interest of the majority party before the next election. Within the legislative branch, the Senate acts as a check on the majority rule in the House. It ensures that the minority is not just a useless body that will weakly prod at the majority until the next election, but rather encourages compromise. The majority party will often make deals to placate small wings of the minority to get to 60 votes allowing those in the minority to make small legislative gains out of the majority’s victories. The Senate was envisioned to be a body of respectful and deliberative debate in which all voices are welcome. It is the norms and precedents carefully developed over centuries of practice that have helped to build that.

In our current hyper-partisan political environment, it can be easy to look to tomorrow and demand a win at the simple cost of a procedural workaround. However, due to the structure of the Senate that workaround will then become the new norm until changed. Each time a Senate norm is violated, years of progress toward building an order that allows for deliberation and respect of the minority is destroyed. With the destruction of each norm it becomes more difficult to label this behavior as unethical opportunism. We know this is a slippery slope because we have already begun sliding down it. As we are destroying the institutional structures that force us to work in collaboration with each other, we are also growing further apart. Times of partisan strain are not when these norms and precedents are least important, but rather when they are absolutely necessary. For this reason, we must treat Senate rules like any other issue upon which we cast our ballots. We must hold Senators accountable for maintaining the rules of the Senate at the cost of their own political and legislative agenda not because it is in a particular party’s best interest, but because these rules are sacred to our process of governance. When Harry Reid first employed the nuclear-option, that should have been looked upon as a step towards destroying the institution of the Senate for the sake of political gain. When Mitch McConnell expanded the nuclear option again in 2016, both sides again should have claimed the same. And when Ted Cruz suggested to overrule the parliamentarian for the first time since 1975, that should have been looked upon as a threat to destroy 42 years of norms and good faith.

 

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