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Section 304 and Our Silly Senate

A little-known rule might allow a majority to pass one more bill.

James Joyner
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Today’s POLITICO Playbook focuses on Senate Majority Leader “Chuck Schumer’s 51-vote gambit.” The upshot is that he thinks he has found a loophole that will allow him to utilize the budget reconciliation workaround to the filibuster rule a third time, rather than the customary limit of two, by declaring the third one an amendment of one of the previous workarounds.

He’s apparently still thinking about whether to unleash this idea and it’s unknown whether the Senate Parliamentarian would allow it. But the obvious takeaway is the sheer absurdity of majority rule (in a system that already starkly advantages the other party’s having a majority, no less) being a “gambit” requiring bizarre workarounds rather than normal order.

I’m small-c conservative enough to be sympathetic to the filibuster as a theory. That is, it ought take more than 50 percent plus one to enact extremely controversial measures or ones that disproportionately impact particular parts of the country. But we have flipped that on its head, making achieving a three-fifths supermajority a requirement to pass anything. And compounded that with lockstep party-line voting, particularly by Republicans, such that even otherwise controversial legislation can’t pass.

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11 responses to “Section 304 and Our Silly Senate”

  1. Jim Brown 32 Avatar
    Jim Brown 32

    Get rid of the filibuster–it’s become nothing but a safety that allows politicians to point play shoot to keep the outrage machine going. Take the safety off and let parties be accountable for legislation. Will there be a few misteps? Absolutely, and the inevitable backlash will serve as an example to parties that want to keep playing games with the law.

    Its all fun and game to posture and talk about repealing Obamacare–until you do it and your Party can’t even win an election as the local dog catcher. The filibuster enables so much political theater.

    The minority party should get 3 talking filibusters per session–The End.

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  2. just nutha Avatar
    just nutha

    @Jim Brown 32: Good idea. Who has the Green Lantern Power Ring this week?

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  3. Michael Cain Avatar
    Michael Cain

    But we have flipped that on its head, making achieving a three-fifths supermajority a requirement to pass anything.

    Almost anything. The Covid relief bill passed with 51 votes. It looks likely that an even bigger infrastructure bill will be passed with 51 votes. $5T in spending, with possibly significant changes in taxes, is not nothing. Non-budget things like HR1, your point stands.

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  4. James Joyner Avatar
    James Joyner

    @Michael Cain:

    The Covid relief bill passed with 51 votes. It looks likely that an even bigger infrastructure bill will be passed with 51 votes. $5T in spending, with possibly significant changes in taxes, is not nothing.

    Right. But these are using the aforementioned Reconciliation loophole.

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  5. James Joyner Avatar
    James Joyner

    @Jim Brown 32: Given the feasible alternatives, I think abolishing the filibuster altogether likely the least objectionable. But “you get three” is so easily abused as to be meaningless. Just bring up the same bill a fourth time with enough technical differences to skirt the rules.

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  6. Gustopher Avatar
    Gustopher

    @just nutha: Manchin and Sinema pass it back and forth on a weekly basis — not sure who has it this week.

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  7. just nutha Avatar
    just nutha

    @Gustopher: 😛

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  8. Just Another Ex-Republican Avatar
    Just Another Ex-Republican

    Yeah, in theory the filibuster is reasonable. But we can’t have nice things because a-holes ALWAYS end up abusing them. And it’s frustrating how few a-holes it takes to mess things up for the rest of us.

    Damn McConnell anyway.

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  9. a country lawyer Avatar
    a country lawyer

    In a democracy while the majority rules, it should only vote on a measure after the minority has a fair opportunity to be heard. The right to be heard, however cannot mean that the exercise of that right can forever prevent the final vote. The present Senate system of filibuster by e-mail turns the democratic system on its head. If what is argued in defense of the filibuster is that it allows for discussion and compromise then fashion a system that provides for extended but not unlimited debate. Why not establish a rule that grants each senator a limited time to speak on each individual bill before bringing it to a vote. Say each senator gets two and half hours of on floor debate. On an evenly divided senate, debate could last only 125 hours or about fifteen days. That’s more than enough to fashion a compromise. The truth is that the minority, which today is the Republicans really don’t want compromise.

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  10. James Joyner Avatar
    James Joyner

    @a country lawyer:

    The truth is that the minority, which today is the Republicans really don’t want compromise.

    And that’s the rub, isn’t it? The theoretical argument for something like a filibuster is that it allows a large minority to be heard and perhaps force compromise. But if every single Republican is going to vote against every single Democratic initiative no matter what, it’s a charade.

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  11. mattbernius Avatar
    mattbernius

    @James Joyner:

    The theoretical argument for something like a filibuster is that it allows a large minority to be heard and perhaps force compromise. But if every single Republican is going to vote against every single Democratic initiative no matter what, it’s a charade.

    This gets us back to the issue isn’t so much the filibuster but the 1974 compromise that essentially ended the talking filibuster and created very few disincentives for engaging in a filibuster.

    While I still think the 60 vote threshold is too high, the idea that the filibuster no longer grinds the Senate to a halt on all matters essentially means there’s no real disincentive to engaging in one. And that becomes clear when you look at the steady increase in cloture votes that happen with the reform. While things have accelerated post-Obama at a breakneck pace, the trend exists right from 74 forward. As to was the move towards the use of “reconciliation” (which in practice is anything but).

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