The Republican-led 115th Congress has commenced, and the Senate has proceeded immediately to the complicated and disputatious process of repealing and replacing President Obama’s signature Affordable Healthcare Act.
But with all the discussion focused on Congress’s agenda and how its leadership will work with the soon-to-be new president, a key aspect of the Senate’s success — or failure — has escaped public attention.
It’s no surprise that over recent decades the Senate has become increasingly polarized, a reflection of the hyper-partisanship of the country as a whole. But while the tenor has changed dramatically, the rules that govern the world’s greatest deliberative body have remained much the same.
For 100 years, the Senate has had cloture, which permits it to end debate on controversial and complex legislation: debate is allowed to continue indefinitely unless at least 60 Senators vote to limit it, a threshold in effect since 1975. Once rare, the need for cloture is now commonplace.
What’s the best way to manage the growing divisiveness within the Senate? One approach is to respond by disregarding the rules and altering the Senate’s fundamental nature. This is what happened when former Majority Leader Harry Reid executed the “nuclear option” to override Senate rules and impose majority cloture on nominations for the first time.
It’s also what happened to legislation when the former majority leader bypassed committees, filed motions to curtail debate prematurely — sometimes as soon as it got underway — and routinely used his power of priority recognition to foreclose amendment opportunities for other Senators. Still other pieces of legislation such as Obamacare, ramrodded through on a partisan vote, must now be rethought.
The Framers of the Constitution, who gave the House of Representatives’ limited debate, restricted amendments, and juggernaut efficiency, intending for the Senate to balance and restrain the House — thereby bringing together disparate points of view — could hardly have imagined a Senate diminished and defanged in this fashion.
And while some people argue that such strong-arming, big-footing, and steamrolling tactics are necessary, time has shown this line of attack to be nihilistic. When discussion on the Senate floor comes down to tit-for-tat combat, the country’s best interest is not served.
Resolution of the blame war that ensued during the Reid era was achieved, in effect, by executive branch directives or by outright circumvention of the Senate’s powers. Perhaps Reid’s greatest ruse was allowing the president to overreach by making unlawful recess appointments to the National Labor Relations Board without litigating to defend the Senate’s power to confirm or reject these appointments. It took the Supreme Court to declare them unconstitutional, which it did by unanimous decision.
Our American system depends on a web of checks and balances not just between the branches of government but within the Legislative Branch itself. A weakened Senate means a Congress unable to meet its constitutional responsibilities. In the ensuing vacuum, the president will take undue power, creating power distortions that ultimately do not serve the country well.
The current majority leader, Mitch McConnell, has taken an approach based on the idea that success must involve both sides of the aisle. Robert Byrd, who represented West Virginia for more than 50 years, often observed that senators exercise two great rights on behalf of their constituents: the right to debate and the right to amend. Under McConnell’s leadership, these rights have been reinvigorated, for members of both parties.
As a result, the Senate is again functional. Leader McConnell operated the way the Framers envisioned, demonstrated by the increased activity and quality of legislation the Senate produced.
Bipartisanship is not just feel-good politics, but a matter of highest urgency. In making public policy, it is far more effective to have fingerprints from both Republicans and Democrats, no matter which is the majority party. This approach wins wider public acceptance, leading to more durable legislation.
On the other hand, when elected representatives have no voice, the populace feels shut out, sharply increasing the likelihood that they will become sullen, cynical, and even rebellious. Such is human nature.
The majority leader can either mitigate this sense of alienation or exacerbate it. Senator McConnell believes a better path is found in an open and bipartisan process drawn from the traditions of the Senate itself. It is messier than the alternative, but far more consistent with the Constitution — and, now, more than ever, with the public good.
Nicholas F. Brady, a former U.S. Senator from New Jersey and Treasury secretary under presidents Ronald Reagan and George H. W. Bush, created the Brady Plan for developing countries and helped engineer the Budget Act of 1990.
The views of Contributors are their own and are not the views of The Hill