Balkinization: Senate Democrats in November and January

Senate Democrats in November and January

Mark Tushnet

There's been a lot of discussion this week about the possibility that after the November elections the Democrats will hold fewer than sixty seats in the Senate and that -- therefore, it is assumed -- they will find it impossible to assemble the votes needed to constitute an effective governing majority. But is that right, even assuming -- as I do -- that the political predications about what's going to happen in November are correct?

Not necessarily. The sixty-vote "requirement" results from the present Senate rules. When a new Senate assembles in January, it has the opportunity to amend its rules. (The Standing Rules of the Senate treat the Senate as a continuing body whose rules remain in effect until they are amended. I could be wrong, but my understanding is that formal amendments to the Standing Rules, which include the filibuster rule, can be made at any time, but usually occur at or near the beginning of a new session.)

The Senate Democrats might conclude that they are operating in a political world where a formal change in the rules is needed. That world, I suggest, is one in which the opportunities for cross-party cooperation on major legislation -- and on much else -- is extremely limited. In such a world the Democrats might ask themselves, "What set of rules would we have to have for us to be an effective governing majority?" There's a lot that might have to be changed -- not just the filibuster rule, but the informal practice of "holds" on nominations by a single Senator, the widespread use of unanimous consent to move the Senate's business, and more. I'm not a specialist in parliamentary procedure, but it seems to me that Democratic politicians and liberal-leaning pundits ought to be putting on the table the possibility of a comprehensive revision of the Senate's rules to accommodate the new political reality.

I'm also not a specialist in political analysis, but I would guess that this possibility isn't going to go far. One reason is that revising the Senate rules -- I suspect, even revising only the filibuster rule -- would destroy whatever slim possibilities there are for cross-party cooperation, and that some Democrats still hold out hope for such cooperation at least occasionally. Another reason is that changing one rule wouldn't be enough; in particular, leaving the current unanimous-consent practice untouched would just shift the location of deadlock from the point of filibustering to many more earlier points. (The standard story is that filibusters have proliferated because the Senate requires cross-party cooperation to get its work done, and that the parties want to get at least some work done, which makes the filibuster threat a serious one.) But, I think, the primary reason is that the Democratic Party in the Senate isn't unified enough to push a comprehensive revision through. The Republican Party has become quite homogeneous, and, although the Democratic Party has less internal variance than it used to, it remains less unified than the Republicans. What that may mean is that a Senate with 57 Democrats might not have a majority to amend the Senate rules in a way that would allow that majority (or a majority of 51) to become an effective governing majority.

But, to return to the beginning, what I find most striking is the punditry's assumption that the Senate rules are somehow set in stone.

Posted 11:36 PM by Mark Tushnet [link]