Wednesday, February 24, 2021

Defending Quadricameralism

David Super

     From ninth grade Civics on, we are taught that the U.S. federal government (and all but one of its states) relies on bicameralism.  Although arguably true to the constitutional text, this account is grossly oversimplified.  Just as the rise of political parties and other developments since the founding have transformed presidential elections, judicial nominations, and other aspects of our constitutional order, they also have transformed bicameralism into something considerably more complex. 

     For the vast majority of legislation, we have a quadricameral federal government, requiring four distinct consents to legislate.  Ordinary bills cannot pass without support from the House majority, the Senate majority, the Senate minority (to forego or shut down a filibuster), and the President.  On more routine matters, these bodies delegate authority to House committee and subcommittee chairs, Senate committee chairs, Senate committee ranking members, and staff in the White House and cabinet agencies, respectively.  True, neither the President nor the Senate minority may formally amend legislation as it moves through Congress, but both can and routinely do demand very specific changes in exchange for their support.  And legislation need not win majority support within the Senate minority the way it generally must within the other three “chambers.”  (House speakers and Senate majority leaders have become largely unwilling to allow legislation to the floor without majority approval of their caucuses; administrations can be of several minds, but presumably presidents ultimately pursue their own “majority” impulses.)  Still, increasing party discipline makes it increasingly difficult to peel off enough members of the Senate minority to obviate negotiating with its leadership.

     At a time when loyalties to party swamp those to branches of government or even to states, quadricameralism effectively ensures that the minority party will have at least one seat at the table when ordinary legislation is being enacted.  At a time when other checks and balances – persuadable moderates, entrenched governance norms, swing voters, and the courts – are far less effective, quadricameralism’s importance is difficult to overstate. 

     The Senate majority is the one “chamber” that is truly indispensable to enacting legislation.  Each of the others may be overridden under some circumstances, typically with extraordinary effort by the other bodies.  The House majority may be excluded if the President, the Senate majority and the Senate minority combine – with the participation of a foreign interlocutor – to exercise the treaty power.  This produces such a plethora of undesirable consequences that a custom has arisen of involving the House majority in treaty-making through the enactment of implementing legislation.  

     The President may be overridden if the Senate majority, the Senate minority, and the House majority combine – also recruiting part of the House minority – to override a presidential veto.  The dictates of party discipline make this avenue available only rarely and only on issues that are deeply controversial within the President’s own party. 

     The Senate minority may be excluded through a few extraordinary procedures allowing the Senate to act by a simple majority.  Approving military base closure reports, overriding proposed rescissions of appropriations, and abrogating recently promulgated regulations under the Congressional Review Act are three such procedures.  By far the most important, however, is budget reconciliation.  This process allows the House majority and the Senate majority to pass a budget resolution without the Senate minority (or the President) and then to implement that resolution through reconciliation legislation without the Senate minority (but with the President). 

     Just as the procedures for excluding the House majority or the President require arduous steps and an unusual degree of unity among the other three “chambers”, so too does the passage of reconciliation legislation without the Senate minority make extensive demands on the remaining bodies.  We therefore should not be surprised or dismayed that reconciliation procedures pose significant obstacles to enactment.  Without the Byrd Rule and other constraints on reconciliation bills, we would rapidly lose our quadricameral system of federal legislation. 

     As I write, the Senate majority and minority are embroiled in intense arguments before the Senate parliamentarian over which provisions can and cannot survive in the reconciliation bill to respond to the coronavirus.  They also are arguing over which amendments can and cannot be offered to it.  Unfavorable rulings often spark a hurried process of redrafting, pressing the Congressional Budget Office or the staff of the Joint Committee on Taxation to “score” (estimate the fiscal impact of) the revised version, and resubmitting the revised provision to the parliamentarian.  Consistent with the “checks and balances” model of constraining governmental power, three distinct non-partisan expert staffs – those of the parliamentarian, CBO, and JCT – combine to determine which provisions may move forward under these extraordinary procedures. 

     In one sense, this process is deleterious to traditional ideas of bicameralism.  The “Byrd bath” is consuming not just the Senate but also the House, which has been holding its version of the relief package until it has a clearer idea what the Senate parliamentarian will allow.  Among other risks, if the House bill contains “Byrd bait” that is stricken when the bill reaches the Senate, that chamber will have no formal role in crafting an alternative.  In addition, representatives from marginal districts do not want to cast difficult votes for doomed provisions.  Few Senate staffers know much about House rules unless they served there previously, but many House committees now have their own Byrd Rule experts.   

     From what I have heard so far, I disagree with some of the parliamentarian’s rulings.  Some important provisions may well fall out of the legislation, causing real harm.  I have seen no evidence, however, of partisan or ideological skew in her rulings, this time or in the past.  And by all accounts, she is hard-working and transparent about the bases of her rulings.  At a time when we have fewer and fewer genuinely persuadable people to adjudicate our disputes, her role and her integrity are extremely important.  Sidelining the Senate minority, like sidelining the House majority or the President, deserves serious attention as it marks a major departure from the quadricameral means of legislating that our laws and politics long have relied upon. 

     Of course, many progressives today are hostile to the very concept of quadricameralism, seeking to eliminate the filibuster.  A comprehensive response is a task for another day.  For now, I will note only that the past four years have demonstrated that tearing down is vastly easier than building up.  Without quadricameralism – specifically, without the Senate minority’s ability to block most legislation during President Trump’s first two years in office – many of the laws, agencies and programs that are vital to the progressive agenda might not now exist.  The task of rebuilding them likely would take much longer than a single presidential term – and might not be possible at all if the Democrats lose the mid-term elections, or certainly if they lose the White House in 2024.  Filibuster reform is for those with a deep envy of Sisyphus. 


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