an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As President-Elect Donald J. Trump feels his way through the transition from candidate to president, another set of far-more-experienced politicians await their turn to transform this country.House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, and their veteran committee chairs now have an unprecedented opportunity to transform the country.With President Obama clearly prepared to veto radical legislation coming to him from the Republican Congress, few have paid much attention to the processes by which such legislation might emerge.Now, a great deal is being written – much of it incorrect – about the strange world of “reconciliation”.Because these procedures, much more than substantive criticism, will constrain what Congress can now do, they are worth understanding.President Reagan was able to accomplish far more than most expected because his advisors mastered congressional procedure far better than many of their adversaries.This is the first of three posts.Here, I offer an overview of congressional procedure.In my next post, I examine in detail what “reconciliation” can and cannot do.In my final post, I consider how Congress and the President are likely to use congressional procedure to advance their agenda on fiscal and related matters.
Most discussions of congressional procedure focus on the Senate.This is largely because the House operates in a manner giving the majority leadership almost complete control.The Speaker rarely calls up significant legislation without special procedures limiting debate and amendments.Occasionally, this might be an agreement reached by unanimous consent, typically for non-controversial legislation.Also possible is a motion to suspend the rules and summarily pass legislation; this requires a two-thirds majority so it can only expedite consideration of bills for which a bipartisan consensus exists.
More commonly, legislation comes to the House floor by way of a “special rule” crafted by the House Rules Committee that provides for consideration of one specific piece of legislation.The House first votes to accept the special rule and then considers the substantive legislation under the terms of that rule.Rules are highly partisan.The House Rules Committee typically has a much higher ratio in favor of the majority party than does the chamber as a whole, and it is filled with Members intensely loyal to the leadership.Thus, special rules closely reflect the leadership’s wishes rather than any Members’ concerns about the pending legislation (much less values of openness or democracy).Supporting adoption of a special rule on the floor is seen as a strong partisan obligation:even Members of the majority party who oppose the underlying legislation typically support the rule.
Special rules typically limit the time allowed for debate both of the underlying legislation and of any amendments offered to it.“Open” special rules allow Members to offer any amendments they desire, but most controversial legislation comes to the floor under “closed” or “modified closed” rules that strictly limit the amendments that may be offered.Members wishing to offer amendments file them with the Rules Committee, and the Committee specifies in its proposed rule which amendments will be in order.These typically are amendments the leadership believes it can defeat without embarrassing its Members or those the leadership favors or can tolerate.
One small opportunity provided to the minority party is that tradition calls for special rules to allow one motion to recommit the legislation offered by the minority.This, in effect, gives the minority the opportunity to force a vote on one issue or cluster of issues that it chooses.A motion to recommit typically calls for the pending legislation to be returned to committee with instructions to make specified amendments or to adopt a specified complete substitute.This can give minority party Members a chance to vote for an alternative approach so that their subsequent vote against final passage of the bill (assuming that the motion to recommit fails) will not appear so nihilist.A motion to recommit also can force Members to cast awkward votes by isolating unpopular features of the legislation under consideration or putting forward attractive proposals that the majority party excluded from that bill.In recent years, motions to recommit have rarely shown much creativity and have routinely failed.
The filibuster dominates Senate procedure.In theory, several filibusters are possible against each piece of legislation, each requiring sixty votes (and considerable floor time) to extinguish.In practice, except at the end of a session, opponents rarely filibuster a piece of legislation again after the majority has mustered sixty votes to invoke cloture (cut off debate) once.Former Senate Majority Leader Harry Reid forced through a modification of Senate rules, over fierce Republican objections, that reduces opportunities for filibusters of presidential appointments to the executive branch and to the lower federal courts.His rule changes still allow a minority considerable opportunity to delay votes on those appointees and do not impair the ability to filibuster Supreme Court nominees or legislation.As a result, avoiding filibusters through “reconciliation” procedures (discussed in detail in my next post) has remained a crucial tool of Senate majorities.
If Senator McConnell decides to eliminate the filibuster, and if his colleagues support him in that effort, reconciliation will lose much (although by no means all) of its importance.Good reasons suggest, however, that they will not.First and foremost, without the filibuster they will consign themselves to near-irrelevancy next time they are in the minority.Although that is unlikely to be after the 2018 elections – when Democrats must defend ten seats in states won by Mr. Trump while Republicans risk only a single seat in a state that voted for Hillary Clinton – it could easily be after one of the next two elections.Many senators once sat as members of a largely powerless minority in the House and are not eager to relive the experience.In addition, Senator McConnell has proven highly adept at getting what he wants with the mere threat of eliminating the filibuster.During the Bush Administration, Democrats dropped their objections to a raft of extremely conservative judicial nominees in exchange for the preservation of the filibuster.But if the Senate did eliminate the filibuster, reconciliation’s appeal would largely be confined to its capacity to block potentially divisive amendments and to limit the powers of committees.
Reconciliation was conceived of in the 1970s as a way of avoiding some collective action problems inherent in budgeting for a large, complex organization like the federal government.Excessive deficits have diffuse costs while funding for particular tax breaks or spending programs have concentrated benefits.As a result, all-too-often the broader fiscal picture would get lost in the special-interest-fueled rush to serve particular constituencies.Reconciliation was conceived of as a means of bringing many important fiscal decisions together into a single piece of legislation, where priorities could be set more thoughtfully.But because that aggregation of difficult issues could readily lead to an aggregation of opponents in the Senate, Congress made reconciliation bills immune to filibusters.Thus, only fifty-one votes are needed to pass legislation that conforms with reconciliation rules.Moreover, in marked contrast to the Senate’s usual freewheeling style, strict rules limit which amendments may be offered during floor consideration of reconciliation legislation.This makes it more difficult for opponents to split the coalition supporting a bill.
My next post will explain what can, and cannot, be done through reconciliation.The third (and final) post in this series will then examine the procedural moves congressional Republicans are likely to make to enact their fiscal and related agendas.
David Super is Professor of Law at Georgetown Law Center. You can reach him by e-mail at David.Super at law.georgetown.edu