Right and Wrong Ways to Reform the Filibuster

By Mark Strand and Timothy Lang

Senate Majority Leader Chuck Schumer of New York has begun the new year with a warning: Join with us on passing our election legislation or the Senate will consider filibuster reform “on or before January 17,” per a new?Dear Colleague letter.

Schumer undoubtedly issued his ultimatum because both parties know that how elections are carried out are critically important for serving justice and promoting trust in the government. Elections that the public thinks are unfairly administered or fraudulent do little else but delegitimize the government.

Within Congress, rules—the process by which legislation is passed—serve a similar function to election law. A process that Members of Congress consider “fair” confers legitimacy on legislation and creates the conditions where the Chamber can function with minimal obstruction and maximal efficiency. This is particularly true when a legislative Chamber is considering a reform to its rules. A reform that passes on a party-line vote, after a poor excuse for a debate and a dubious process, provokes animosity from the minority, who then find obstruction to be the order of the day. By contrast, reforms (and legislation generally) adopted with a fair debate and minority input enjoy much more support from Members of Congress and can improve the overall health of the Legislative Branch.

Schumer issued his ultimatum since Republicans do not support election bills that the Democrats have sought to advance this Congress. Thus, if the Majority Leader chooses to go forward with filibuster reform, he will need to do so on a party-line vote. Some filibuster reforms that some Democrats are considering—like eliminating it for the motion to proceed or requiring Senators to hold the Floor and debate—might be meritorious in themselves, but since the occasion for reform is a sharply partisan issue, the reforms will increase the overall acrimony among the Senators. In the last decade, the Senate has used the nuclear option—on almost entirely party-line votes—on three occasions to change the filibuster. Relations between the parties chilled, and the Senate is as dysfunctional as ever. A new round of partisan filibuster reform to advance partisan legislation will have the same results. That’s no way to change one of the most important features of Senate procedure.

Instead of implementing filibuster reform within the context of a partisan episode, the Senate could consider it another way. A more effective way to do it would be via a bipartisan congressional reform committee.

Instead of implementing filibuster reform within the context of a partisan episode, the Senate could consider it another way. A more effective way to do it would be via a bipartisan congressional reform committee. This way of proceeding would, first and foremost, separate procedural issues from immediate and pressing partisan issues. Relatedly, a strictly bipartisan composition of the committee would increase the likelihood of minority party buy-in for whatever it produces. Additionally, a reform committee could examine filibuster reforms in themselves and in relation to other issues, like the Senate calendar or the amendment process. Senators could more clearly see how a change in one part of Senate procedure will affect other parts elsewhere and thereby minimize negative unintended consequences. A reform committee could craft a rational, comprehensive bipartisan plan to strengthen the Senate.

Congressional reform committees are a proven way of making the legislature work better. In fact, since 2019, the House’s current Select Committee on the Modernization of Congress, a strictly bipartisan group of 6 Republicans and 6 Democrats, has produced?143 recommendations—most adopted unanimously—to improve various aspects of the House’s procedures and operations. Recommendations have touched on civility and bipartisanship; committee procedures and practices; staff retention, training and morale; diversity and inclusion; technology, and numerous other areas. Additionally, the House has already completely?implemented?20 of their recommendations and has partially implemented 13 more. The Select Committee’s work is ongoing, and it is already succeeding.

The House’s reforming initiative could be replicated in the Senate by creating a new?Joint Committee on the Organization of Congress, a special House-Senate committee, with equal numbers of Republicans and Democrats. Congress created similar committees in 1945, 1965, and 1992, and they produced recommendations on issues like the committee system, the congressional calendar, staffing, and the budget process. Congress later adopted some of the recommendations these committees produced, and they were the bases of the Legislative Reorganization Acts of 1946 and 1970. There is no reason a new Joint Committee on the Organization of Congress cannot pass recommendations that become the basis of the Legislative Reorganization Act of 2022 or 2023.

The last Joint Committee on the Organization of Congress was created 30 years ago, so the legislature is long overdue for a comprehensive look at its operations. As we begin a new year, it’s time for a positive change, not a partisan one. A bipartisan Joint Committee is the best process Congress can devise to consider reforms that enjoy legitimacy from all its Members and the wider public. This 2022, let’s see Congress create a new Joint Committee on the Organization of Congress to make real reforms for all Americans. And, if you’ve reached the end of this blog post, we wish you a very happy and healthy 2022!

Mark Strand?is the President of the Congressional Institute and Timothy Lang is the research director.?The Sausage Factory?blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.