Senate Rules Reform: The Aftermath

Senate Rules Reform: The Aftermath

Wondering what happened with filibuster reform? Here's the details:

After months of sustained pressure, millions of emails generated to Senate offices, hundreds of thousands of phone calls, and deliveries of petitions with over 1 million signatures, the Senate made incremental steps toward becoming slightly more efficient last week.

The reforms are not as comprehensive as we would have preferred, but they are an improvement over the status quo.

As Senator Elizabeth Warren said, “[i]t’s some change in a Senate committed to no change. So that’s important.”

First, here’s a quick tutorial on what you need to know before understanding the reforms:

  • Motion to Proceed: There are two bites at the filibuster apple when it comes to ordinary legislation. The first is an opportunity to filibuster the motion to proceed; the second is the opportunity to filibuster the bill itself. Before a bill can even be considered, the majority leader moves forward with the “motion to proceed.” Ironically, Republicans have increasingly filibustered this motion. In other words, they have often blocked even the opening of debate by calling for 60-vote thresholds before proceeding to the full Senate’s consideration of a bill.
  • 30 Hours: Once the Senate has “invoked cloture,” (i.e., 60 senators have voted to end a filibuster), the Senate rules allow for an additional 30 hours of post-cloture consideration. This was intended to provide senators with further opportunities to amend legislation and debate bills, but the minority frequently used the 30 hours to unnecessarily delay and obstruct action on bills and nominees when a supermajority was ready to move forward.

Now that you are well-versed in the “motion to proceed” and 30 hours of post-cloture consideration time, you will have a better grasp on what reforms passed the Senate last week!

  • First, the Senate amended its rules so that if the majority leader and the minority leader (plus 7 senators from the majority and 7 senators from the minority) sign a cloture petition on the motion to proceed, then there will no longer be 30-hours of post-cloture debate and consideration time. This will streamline the process a bit, so that on items of broad consensus (with support of the majority leader and the minority leader), the Senate can move more quickly to full and open debate on substantive legislation. No longer will the motion to proceed require 30 extra hours of debate time, even after receiving 60 votes. Of course, this only holds true if the conditions described in this paragraph are met — namely, agreement between the majority and minority leaders. And it only applies to the motion to proceed.
  • Second, the Senate amended its rules so that it will only require 1 motion to go to conference with the House of Representatives. Prior to this rule change, it took 3 motions for the Senate to go to conference with the House, and this could tie the process into many procedural knots, because each motion could be subject to a filibuster. Now, those 3 motions will be combined into 1 motion. However, that 1 motion to go to conference can still be filibustered.
  • Third, the Senate adopted a “standing order” which will sunset at the end of this Congress. Consider it a trial period. Under the terms of this standing order, if the majority leader provides the minority with an opportunity to offer two amendments, the motion to proceed will no longer be subject to a filibuster.
  • Fourth, the standing order provides that for certain presidential nominees (like district court judges and certain sub-cabinet positions), those nominees will no longer be subject to the requirement of 30-hours of post cloture consideration, but will instead be subject to post-cloture debate time of 8-hours (or 2-hours, in the case of district court judges). This will also sunset at the end of this Congress.
  • Finally, the leaders have agreed that senators wishing to filibuster or threaten a filibuster must go to the Senate floor and identify themselves. They will also work to ensure that post-cloture debate time is actually used for debate, rather than unnecessary foot-dragging. This is merely a handshake agreement, and is not reflected in the language of the standing order or the rules change resolution.

You’ll notice that one thing is missing: any action to address the silent filibuster. Other than the informal handshake, the Senate failed to address the problem of the silent filibuster, where senators are able to block action without explaining themselves to the American people or their colleagues. As the New York Times wrote, the deal allows senators to continue the practice of mounting a “filibuster in absentia.”

Common Cause will continue to work to reform the rules of United States Senate, so that our elected senators can address the pressing issues of our day in a full, open, accountable and transparent manner.

[You can read more about what happened here (Sarah Binder of the Brookings Institution), here (New York Times re-cap) and here (Ezra Klein’s interview with Senator Jeff Merkley)].