THE demise of President Clinton's economic stimulus package
brought to public attention the peculiar rules of the United States
Senate. The Senate has no general rule that limits debate. Instead,
it has Rule 22, which requires three-fifths of all senators - 60 in
the current Senate - to vote to close debate. And the Senate has no
general rule that requires that amendments to legislation be
germane to the pending legislation.
In recent years, these rules have fueled hyperindividualism and
petty obstructionism in the Senate. Pressured by lobbyists and
eager to demonstrate their commitment to key constituency groups,
senators have abused their parliamentary privileges and undermined
the role of the Senate as a policymaking body.
The change is reflected in the number of times the cloture
motion - a motion to close debate and bring a matter to a vote -
has been subjected to a vote. The period from 1919 to 1970 saw a
total of 50 cloture votes - less than one a year. The 1971-92
period saw 295 - more than 13 a year. The 102nd Congress, 1991-92,
set a record with 48 cloture votes. Even the motion to take up a
bill on the floor is now subject to obstructionism. From 1977
through 1982, only six cloture votes on the motion to proceed to
the consideration of a bill took place; in 1991 and 1992, the
Senate cast 35 such votes. These numbers only scratch the surface
of obstructionism that is commonplace in today's Senate.
In this year of political reform, it is time for senators to
take stock of their institution and adopt essential changes in
their rules. The current rule allows three-fifths of all duly
elected and sworn senators - 60, if all seats are filled - to
invoke cloture, except on matters pertaining to Senate rules, for
which a more stringent two-thirds majority of those present and
voting is required. Rule 22 is not strong enough. Its unfortunate
effects are seen every day in the Senate's dependence on
unanimous-consent agreements and the perverse practice of holds.
Since before the Civil War, Senate floor action on major
legislation has been governed by formal unanimous consent
agreements. In the modern Senate, the majority leader seeks
unanimous consent to bring a bill to the floor and often seeks
consent to structure debate and action on agreements. In the
absence of general rules limiting debate and amendments, unanimous
consent is the only recourse. So a simple request for unanimous
consent to limit debate or amendments is the standard approach.
Dependence on unanimous consent to lend some order to floor
activity also means that a single senator can upset the leader's
plans. Consequently, the majority leader consults with the minority
leader and other interested senators before seeking consent on all
but the most routine questions. In recent decades, this process of
anticipating and recording objections has become institutionalized.
Well-understood routines are in place for senators to register
objections, reservations, and concerns about requests to take up
bills, nominations, and even treaties.
The registered objections are known as holds, reflecting their
potential effect on legislation. Most holds delay floor
consideration of legislation. Rather than risking objections to his
unanimous consent requests, or a filibuster, the majority leader
usually attempts to get the objecting senator to release a hold.
As recently as the early 1960s, senators did not threaten
filibusters with much frequency. They tended to reserve the
filibuster for the most important issues. For Southerners, this
meant using the filibuster against civil rights legislation and
some labor legislation, but little else. Senators did not use holds
with much frequency or effectiveness.
But as the political world changed so did Senate behavior.
Senators responded to their new world by taking on more committee
assignments, expanding their staffs, adding travel funds, and
upgrading their office technology. …