There is a battle brewing over who will succeed Sen. Mitch McConnell (R-Ky.) as leader of the Senate Republicans. The fight should be less over personalities and more over how the candidates promise to run the Senate, a broken institution in need of reform.
The battle between Minority Whip John Thune (R-S.D.), Sen. John Cornyn (R-Texas), and possibly also a dark horse candidate such as Sen. Steve Daines (R-Mont.), is intensifying. The Hill reported that Thune announced “that he will transfer $4 million to the National Republican Senatorial Committee to overcome the Senate Democrats’ growing cash advantage.”
Getting Republicans into the majority is important, but equally as important is making sure that the Senate is reformed to reestablish the deliberative nature of the body.
A candidate for Republican leader must pledge to reject bad ideas that will make the Senate less deliberative. Vice President Harris’s recent call to abolish the legislative filibuster to restore abortion rights should be tossed aside. Both Cornyn and Thune have promised to preserve the filibuster, which should warm the hearts of conservatives and back benchers of both parties who relish the opportunity to have a say. Preserving the status quo is the minimum a candidate for GOP leader should promise.
But preserving the status quo is not enough — it would be beneficial to promise to restore the filibuster’s application to nominations. The chamber’s rules do not make a distinction between extended debate on nominations and on legislation. Senate Rule XXII provides for a three-fifths vote to end debate “any time a motion signed by sixteen senators, to bring to a close the debate upon any measure, motion, or other matter before the Senate.” There is no mention of a distinction between debate on legislation and nominations in the standing rules of the Senate.
The rules were modified by a bad precedent. In 2013, Democratic Senate Majority Leader Harry Reid raised a point of order to abolish filibusters on nominations (exempting the Supreme Court), claiming they were unconstitutional. This was the so-called “nuclear option,” which chipped away at the filibuster, resulting in further calls to abolish it on legislation. In 2017, McConnell expanded the new nomination rules to include Supreme Court nominations in order to confirm Justice Neil Gorsuch.
Another important reform would be to allow amendments to be offered by senators without the leadership blocking them using a tactic called “filling the tree.” It has become routine for the majority leader to block out amendments to bills. The tactic is a complicated one, but it affects all legislation moving through Congress.
There is a Senate precedent that grants the majority leader priority recognition when several senators request it. The leader uses this recognition to offer a series of meaningless amendments making insignificant changes to the underlying legislation, solely in order to block other senators from offering substantive amendments. When the leader files cloture on the bill, senators are blocked from offering amendments and the leader’s procedural amendments are dispensed with.
They new majority leader should promise not to employ this tactic.
A final promise should be to move away from omnibus spending and multi-subject bills. One of the biggest complaints of members is dealing with giant, thousand-page bills containing multiple pieces of legislation that end up radically changing law or leading to overspending. These bills come up with no opportunity to strike provisions that overspend or helps special interests. In the end, members are bullied into voting for these bills through the threat of causing government shutdowns or obstructing national security initiatives.
Promising to transact appropriations bills separately and on time to avoid omnibus spending bills should be low-hanging fruit. Congress is in the habit of passing continuing resolutions when regular appropriations are not done by the end of the fiscal year; members are then intimidated into voting for them for fear of being blamed for a dreaded government shutdown.
The Senate is a broken institution, but a victorious statesman could reform the body in a way that restores deliberation, debate and the opportunity to offer amendments.
Brian Darling is former counsel for Sen. Rand Paul (R-Ky.).
