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Dodd and Senate Reform

Jonathan Bernstein is a political scientist. He blogs at A plain blog about politics.

Yesterday, Chris Dodd -- who has served in the Senate since 1981, and before that in the House since 1975, and whose father served in the Senate from 1959-1971, and who is completing one of the all-time great final years in office (in terms of quantity and importance of accomplishments), threw cold water on Senate reform:

I’m so vehemently opposed to the ideas to fundamentally change the rules of the Senate,” retiring Sen. Chris Dodd (D-CT) told reporters this afternoon. “Those ideas are normally being promoted by people who haven’t been here in the minority.” “I made a case last night to about 10 freshman senators: You want to turn this into a unicameral body? What’s the point of having a Senate?” Dodd said. “If the vote margins are the same as in the House, you might as well close the doors.

I think the tendency for a lot of people -- certainly a lot of liberals -- will be to just dismiss what Dodd and other senior Senators are saying. I disagree. I think it’s useful to remind people that the Senate is not the House, and it’s okay for it to be governed differently than the House is governed. While Dodd doesn’t specify in these comments what it is that makes the Senate different, I think generally the notion is sound and consistent with the composition of the Senate that the Senate should empower both relatively narrow interests and large minorities at the expense of simple party majorities.

(As always, I’ll mention the caveat: the extreme malapportionment involved in the structure of the Senate has no legitimate justification at all, but fortunately doesn’t seem to be all that important in practice, especially not in partisan terms, and anyway there’s nothing that can be done about it).

The question is: if you’re Chris Dodd or any other senior Senator who wants to preserve the things that make the Senate different, what should you tell junior Senators? It seems to me that the last thing you should tell them is to oppose reform. The truth is simple: the Senate that Dodd’s father entered in 1959 is gone. The Senate that he entered in 1981 is gone, too. The Senate is going to be, for the foreseeable future, a much more partisan place than it was in 1959 or even 1981. The rules and norms that worked then stopped working, and new norms have developed. Soon, the rules are going to change. The next time there’s an extended period of unified government -- that is, same-party control of the House, Senate, and White House for more than four years -- Senate rules will almost certainly change. Look how quickly Senate reform has moved from a complete non-issue for liberals to one of their most central demands; remember that the same thing happened once Republicans secured unified government in 2003.

So change is on its way. Those who want that change to reflect the strengths of the Senate shouldn’t be resisting reform; they should be leading the way in trying to find rules that allow the Senate to function in a partisan age without turning it into a majority party dictatorship (like some other chambers of Congress one could mention). Indeed, while many liberal pundits, bloggers, and activists pretty much would like to see simply majority party rule in the Senate (just as many conservatives did five years ago -- and, yes, there are plenty of people on both sides who are in fact principled believers in majoritarianism), what strikes me is how many reform proposals have tried to find a middle ground. That’s true for the Bennet proposal and the Harkin plan, as well as ideas from Scott Lilly, Jonathan Krasno and Gregory Robinson, and Ruth Marcus. In other words, it seems to me that if you want the Senate to retain what I, and presumably Chris Dodd, see as its strengths, what you really should do is to work with the people who want reform to do that. Because otherwise, reform is going to come anyway, and it may well do what Dodd fears -- turn the Senate into a second House of Representatives.

Which is why I’ve been pushing my suggested reforms, which owe a debt to all of the proposals I mentioned above, and to Ezra Klein, whose musings on reconciliation inspired my Superbill! proposal. What I’d like to see:

1. On executive branch nominations, retain the ability of Senators to place holds, but eliminate the filibuster (or at least lower the cloture requirement to a simple majority).

2. On judicial nominations, eliminate holds: any nomination that clears committee is entitled to a vote (including, if necessary, a cloture vote) on the Senate floor within some relatively short timeframe. Of course, the majority would not have to move to the nomination if there were enough votes to block it, but small minorities or single Senators should not be able to prevent, or even slow, judicial nominations from moving forward.

3. On legislation: replace reconciliation with a new Leader’s Bill (or, as I also like to call it, Superbill!): the majority party gets one bill a year that needs only a simple majority to pass. Like reconciliation, it would be as large, with as many unrelated topics, as the majority can sustain; unlike reconciliation, the topics would not need to be limited by complex budget rules. It would also be amendable on the Senate floor by simple majorities (although it probably should be protected from non-germane amendments). Beyond that, the main limits on the Leader’s Bill would be the ability to command simple majorities (as well, of course, as the need to move the bill through the House and to avoid a veto).

4. I’m ambivalent about changing the number required for cloture for judicial nominations and regular legislation, and probably wouldn’t mess with it right now, although I like the idea of requiring an affirmative vote (of 41) to block cloture, rather than the current requirement of 60 to invoke it. I also like the idea of restricting or eliminating filibusters on appropriations bills, although implementing that would require strict adherence to the principle of not legislating on appropriations bills, which might be tricky to do in practice. And I think ideas about streamlining cloture-related procedures (such as eliminating the chance to filibuster on the motion to proceed to a bill, reducing the time it takes a cloture petition to ripen, and reducing post-cloture debate time) are all worth exploring.

Senate change isn’t just coming; Senate change is a constant. Senators can either manage that change by creating new rules and norms that allow the strengths of the Senate to thrive, or they can stick to the letter of the rules while the actual practices of the Senate change around them -- and in doing so, risk either disfunction that reduces the role of the Senate in the political system, or a majoritarian backlash that ignores those strengths of the Senate. If Chris Dodd and other senior Senators really care about the institution, they would study all of these reform proposals and propose that the best ones be adopted.