Eight ways to fix the Senate—and why they won't happen.

Who's winning, who's losing, and why.
Feb. 8 2010 7:37 PM

How a Bill Doesn't Become a Law

Eight ways to fix the Senate—and why they won't happen.

Calls for Senate reform peaked over the weekend after Sen. Richard Shelby, R-Ala., put a "blanket hold" on more than 70 Obama nominees, not out of principled opposition, but because two projects in his home state of Alabama weren't getting enough attention. [Update, Feb. 9: Shelby lifted most of his holds late Monday.]

This, for Senate-reform advocates, was the last straw. "The genie is out of the bottle with this abuse of Senate rules," wrote FireDogLake's Jon Walker. "I congratulate Shelby on fully exploring the logic of the modern United States Senate," remarked Matthew Yglesias. "Why, after all, should a great nation of 300 million people have a functioning government if preventing the government from functioning can help a lone Senator advance parochial interests?" "America is not yet lost," Paul Krugman reassured. "But the Senate is working on it."


Complaints about Senate procedure tend to focus on two tools: The filibuster, which many liberals hold responsible for the failure (so far) of health care reform, and the "hold," which allows a single senator to stall a president's nominee. Both mechanisms are outdated, say critics. Filibusters used to be rare, with roughly 8 percent of major bills getting blocked in the 1960s. Now, the rate is 70 percent. And holds, while always common, are being used more frequently now than ever.

What can be done? Well, quite a few things. What will be done? Probably not much. Here are a few of the possible reforms on the table—and why they won't pass anytime soon.

Lower the threshold—but not yet. In 1975, the Senate lowered the number of votes needed for cloture from 67 to 60. Now, some reformers suggest they lower it even further—to 55, say, or all the way to 51. No minority is going to undermine itself by scrapping the filibuster immediately, so the change would kick in six or eight years from now, when either party could be in power.

Why it won't work: Altering the filibuster requires changing the Senate rules, and changing the Senate rules requires a 67-vote supermajority. It's hard enough to get 60 votes on a contentious issue like health care reform. Getting 67 votes on scrapping the filibuster? Unlikely. "Nobody's got 67," says Sarah Binder of the Brookings Institution. "Unless there's some calamity where the two sides come together."

Lower the threshold slowly. One proposal that gets kicked around is to keep the initial threshold for cloture at 60 votes, but then lower it incrementally. After three days, it falls to 57. Three days later, to 54. Three days later, to 51—a simple majority. That way, the minority has time to express its opposition, but can't block legislation forever.

Why it won't work: While the proposal sounds good in theory, it faces the same obstacle as abolishing the filibuster altogether: This, too, would require 67 votes.

Use the fast track. Senate rules allow the chamber to "fast track" certain pieces of legislation, or pass them without extended debate. Budget reconciliation is just one example. Congress can also fast-track treaties or troop requests. The Senate could conceivably set up fast tracks for other types of legislation, too, like judicial nominees—if, say, a bipartisan commission signed off on a nominee beforehand—or for raising the debt limit.

Why it won't work: Fast-tracking legislation is more plausible than scrapping the filibuster altogether, since it would take only 60 votes to accomplish instead of 67. But the political cost could still be high, as the minority party would accuse the majority of shoving the bill through using unconventional channels. (See the current bickering over reconciliation.)

Limit the opportunities for filibusters.Filibuster, in the singular, is a misleading term. It should really be plural. Any piece of legislation needs to overcome several different procedural hurdles, including a motion to proceed with debate, a motion to end debate, a call for a conference, the naming of conferees, and a motion to proceed to conference. All of this takes time: The Senate must wait at least 24 hours for a cloture petition to "ripen," plus another 30 hours for consideration after cloture is invoked. Congress could speed up the process by eliminating some of these votes. The filibuster would be intact, but its stalling potential would be lessened.



More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

Why Do Some People See the Virgin Mary in Grilled Cheese?

The science that explains the human need to find meaning in coincidences.


Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

What to Do if You Literally Get a Bug in Your Ear

  News & Politics
Sept. 17 2014 8:15 AM Ted Cruz Will Not Join a Protest of "The Death of Klinghoffer" After All
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
Brow Beat
Sept. 17 2014 9:03 AM My Father Was James Brown. I Watched Him Beat My Mother. And Then I Found Myself With Someone Like Dad.
Future Tense
Sept. 17 2014 8:27 AM Only Science Fiction Can Save Us! What sci-fi gets wrong about income inequality.
  Health & Science
Sept. 17 2014 10:20 AM White People Are Fine With Laws That Harm Blacks The futility of fighting criminal justice racism with statistics.
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.