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This is not how the Senate is supposed to work

Andrew Harrer | Bloomberg | Getty Images

There is a new norm developing in American politics, and it's a worrying one: Because a critical mass of senators refuse to either eliminate the filibuster or accept the limits it imposes, the Senate is writing major legislation under extreme and bizarre constraints. The result is that important bills in American politics are compromised and defective from the start.

This was on display in the recent health care fight, and we're seeing it again in the tax reform effort. In both cases, the GOP is trying to write massive, sweeping legislation under the budget reconciliation rules — a process that protects the result from death by filibuster but also hamstrings what the bills can actually do.

This isn't just a Republican problem. Democrats have been using reconciliation more and more brazenly, and while Republicans have pushed it further than ever before under Trump, it's likely that Democrats will follow in their footsteps when they retake power.

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The root issue here is that the Senate's legislative process has been upended by the abusive use of the filibuster, and neither party has been willing or able to address it. The result is the US Senate is moving towards a process where major bills are protected from filibusters, but the cost of that protection is those bills are distorted by a nonsensical process where the goal is surviving parliamentary challenge, not writing the best policy. The possible costs here are immense: a future in which most significant legislation is drafted poorly and the country is left to suffer the consequences.

"Reconciliation was designed for minor budgetary adjustments, not major policy proposals," said Alan Frumin, a former Senate parliamentarian.

Neither party likes this state of affairs. Neither party meant to create this state of affairs. And it's time both parties had the courage to come together and address it.

What is budget reconciliation, and how did it eat the Senate?

A bit of history is useful here. The budget reconciliation process was created in 1974 to expedite Congress's budget process. The idea was to create a shortcut for an annual bill aligning how much Congress intended to tax and spend with how much it was actually taxing and spending.

The bill was given special protections from the normal delays and impediments of the legislative process — notably, it was protected from the Senate filibuster and could only be debated for 20 hours. The result was that a reconciliation bill could pass with only 51 votes, while normal legislation could be held to a 60-vote threshold.

Almost immediately, legislators began trying to jam their pet projects through reconciliation. And so in 1985, Congress created a roadblock called the "Byrd Rule," which limited the kinds of bills that could use the shortcut.

The Byrd Rule is a bizarre bit of legislative self-discipline. Even the Congressional Research Service, which deals daily and impassively in the arcane bylaws of the US Congress, calls it unusually "complex." Its central limitation is that every provision of every bill that goes through reconciliation needs to raise or lower spending and taxes. More importantly the effects on spending and taxation have to be the point of the policy — they can't be "merely incidental," though the term "merely incidental" is never defined. The rule also states that no bill that goes through reconciliation can increase the long-term deficit.

In practice, what this means is that the minority party can challenge any provision of a budget reconciliation bill before the Senate parliamentarian, and if the parliamentarian agrees that the language violates the Byrd Rule, it's struck from the bill. And so writing legislation under reconciliation means, first and foremost, trying to write a bill that will survive those parliamentary challenges. That's a very different task than writing the best bill possible.

"Government by reconciliation is terrible," says political scientist Gregory Koger, author of Filibustering: A Political History of Obstruction in the House and Senate. "Good laws often incorporate non-budgetary components, but this is prohibited by the reconciliation process, especially the Senate's Byrd Rule. The result is stunted legislation."

The obvious question all this raises is if reconciliation is such a bad process, why is the Senate increasingly defaulting to it? The answer is that, in the eyes of the majority at least, it's better than the alternative.

The tyranny of the filibuster

In 1964, President Lyndon Johnson's Senate liaison, Mike Manatos, wrote a memo assessing the results of the election on Medicare's chances of passage. After ticking through the winners and losers, he concluded, "if all our supporters are present and voting we would win by a vote of 55 to 45."

Imagine that. In living memory, the Senate could consider a bill as consequential as Medicare without anyone expecting a filibuster. (Medicare, by the way, ultimately passed with 70 votes in the Senate — again, a different time.)

Filibusters were rare in past Senates (with one gruesome exception: they were used routinely to block anti-lynching and civil rights legislation). According to official records, there were only three votes to break a filibuster from 1964 to 1965. From 2013 to 2014, there were 218.

The filibuster, once a rarity, has become omnipresent. The reasons for this are many, but political scientists mostly blame the rising polarization of the two parties, and particularly the tactical obstructionism pioneered by Republicans. The bottom line, though, is that basically nothing passes the Senate now without 60 votes, and the bipartisanship necessary to find those 60 votes is in sparser supply than ever before.

The majority party could solve this problem in one of two ways. The first way would be to simply eliminate the filibuster — a rule change that could be accomplished, at any moment, with only 51 votes. There's precedent for this: In 2013, Harry Reid and the Democrats exempted executive branch nominations and non-Supreme Court judicial appointments from the filibuster. In 2017, Mitch McConnell and the Republicans did the same for Supreme Court nominations. The legislative filibuster endures only because a majority of senators want it to endure.

Which raises the second possibility: The majority party could simply live with the filibuster. They could propose only bills that could attract some bipartisan support. They could accept the defeat of priorities that don't have cross-party appeal. This would be a world in which the Senate does less but pushes itself harder to find common ground.

Rule by reconciliation

What the Senate, under both parties, has actually done is find a third way: relentlessly expand the budget reconciliation process to absorb bills it wasn't designed to carry, and write those bills in increasingly bizarre ways to satisfy the Byrd Rule. That way, they don't have to get rid of the filibuster, and they also don't have to abandon their agendas. "It represents the path of least resistance," says James Wallner, a former GOP Senate staffer and a member of the R Street Institute's Governance Project.

But the result is legislation that is often unfinished, poorly written, or booby-trapped.

President George W. Bush, for instance, wanted to pass giant, deficit-busting tax cuts that he knew wouldn't find 60 votes. So his congressional allies wrote those tax cuts into a reconciliation bill. The problem is the Byrd Rule doesn't allow legislation that raises the long-run deficit. The GOP's solution was simultaneously straightforward and ridiculous: All the tax cuts expired 10 years after they passed.

President Barack Obama, like President Clinton before him, decided against using the reconciliation process to write his health care bill. But Ted Kennedy's death, and Scott Brown's unexpected victory, imperiled the legislation at the eleventh hour. So Democrats finished the legislation in reconciliation, which meant leaving non-budgetary portions of the text unedited. It's hard to say how much this contributed to Obamacare's implementation troubles, but it didn't help.

It's under Trump, however, that reconciliation has become the primary vehicle used for all major priorities. Republicans tried to write their entirehealth care bill in reconciliation, and they intend to do the same for their tax bill. This was particularly damaging to the health care effort: It meant they couldn't directly address key regulations or build alternative structures for managing insurance markets. All of their bills were handicapped by these strictures. And if any of their bills had passed — and some of them came close — the health care system would have been far worse off for it.

The tax reform effort will be similarly distorted. There is little chance that Republicans will pay for their tax cuts, and the result will likely be that they write tax cuts that self-destruct after 10 years, injecting unnecessary confusion into the economy.

So this, then, is where the world's greatest deliberative body has ended up: trapped by its own unwillingness to either reform or abide by the filibuster, and abusing the reconciliation process in ways that degrade the quality of the rare pieces of major legislation it actually does pass.

It is past time for the Senate to admit what its members, and the country, already know. The institution is broken. The rules need an overhaul. The legislative process needs to be rebuilt to create an intentional balance between majority rule and minority protections.

Rule changes often feel like power grabs. Hell, rule changes often are power grabs. But they don't have to be. Both parties could form a bipartisan working group of current or retired senators and agree to implement those recommendation six years in the future — when no one knows which party will be in power, and so both parties have to think of themselves as a potential minority and majority as they craft their compromise.

As a political reporter, I spend a lot of my time talking to members of the US Senate on both sides of the aisle. None of them are proud of how their institution is working right now. None of them believe this is the way their institution is supposed to work, or that this is how the American people want it to work. Maybe it's time they did something about it.