The Federalism Project

Constitutional Reform and Governance in the U.S. (& Around the World)

Senate Reforms

There is no doubt that the US Senate might be the most dysfunctional part of the US system of governance.  Unlike the House (proportionally representing the people) and the Presidency (a singular executive to be the ‘commander in chief’), the Senate (the great compromise among the founding fathers and the States) is the obvious anomaly: equally representing each state, but not the State governments as is the case with other federal systems of governance (see Germany and India).

Two aspects of the work of the Senate have been known to cause significant gridlock and complication on the work and effectiveness of the US system of governance: 1) the ‘advise and consent’ process, and 2) the filibuster – enhanced majority voting.

1) Presidential Appointment and the role of the Senate to ‘advise and consent’

Under the US Constitution, the President has the power to appoint (with the advice and consent of the Senate) ambassadors, public ministers, consuls, and judges.  Although this ‘division’ of power is very prudent and appropriate under the US Constitution, it fails to recognize the different functions and significant of such appointments.

Ambassadors and Department appointees (cabinet and sub-cabinet level), all serve at the pleasure of the President.  On the other hand, Judges are appointed for life (removable only if impeached by the Congress), while Commissioners (and other fixed-time appointees) are supposed to be independent and therefore above party politics.

Currently, since the Constitution does not require otherwise, Senate rules require a simple majority in order to confirm all Presidential appointments (cloture motions aside – see further down).

And yet, under the Constitution, the US Senate need a super-majority (or a higher then 50+1 simple majority) to approve the following:

  • Amend the Constitution [2/3 needed]
  • Adopt a Treaty [2/3 of those present]
  • Expel a Member of Congress [2/3 needed of the chamber in question]
  • Overturn a Presidential Veto [2/3 needed]
  • Impeach the President [2/3 needed]

Therefore, it would not be a stretch to acknowledge that although Presidential appointments that serve at the pleasure of the President can and should be confirmed with a simple Senate majority… other appointments (like Judges) could and should require a higher threshold!

The Senate should confirm Presidential appointments (Judicial, Commissions, Administrative) with a voting requirement that reflect tenure/function of the position:

  • All Judicial appointments are for life, therefore Senate Confirmation should require a 2/3rd vote (67/100).
  • Independent Commissioners and other fixed-term appointments (FBI Director, IRS Commissioner, etc.), that are for a fixed period of time and not subject to termination by the President, should require an enhanced 3/5th vote (60/100).
  • All appointments to the Federal government that serve at the pleasure of the President (Cabinet, sub-cabinet, Ambassadors, etc.), should only require a simple majority vote (50 +1).

Similarly, all Presidential appointments should deserve an automatic consideration, and should not be help indefinitely by any individual Senator or Senate majority.  Subject to the appointment function, there should be a mandatory vote by the Senate after X number of days since the official appointment by the President.  For example:

  • All Judicial appointment = 90 days.
  • Independent Commissioners and other fixed-term = 60 days.
  • Cabinet, sub-cabinet, Ambassadors = 30 days.

The Senate and of course reject the Presidential appointee in such a mandatory vote, but it will have to give consideration (up or down).

Reform of the appointment process is essential to facilitate the de-polarization of the Judicial and Executive branches.  The higher voting threshold for Judges and Independent Commissioners will inevitably lead to the selection of ‘compromise/bipartisan’ candidates.

2) Senate Enhances Voting Requirement and the Filibuster

Traditionally, the idea was that the work of the Senate would be ‘deliberately’ slow in order to allow for the ‘hot tempers’ that prevailed in the House (the ‘populist’ branch of the US system of governance) to cool down.  From ‘blue slips’ and hours of debate, to the right of Senators to hold the floor (filibuster), Senate rules allowed for extra time (much extra time) in making decisions (also allowing Senators from far away States time to make the multi-day long journey to Washington DC).

Therefore, time for debate has been an honored tradition of the Senate, codified into its rules by allowing Senators the right to debate as much as they want (using ‘debate’ to obstruct the ability of the majority to pass a bill, is to ‘filibuster’).  Although not as much used in the 19th century, the threat to hold the Senate hostage and thus defeat bills with endless debate has increase in the past 100 years and has become almost a routine practice in the past 30 years.

To deal with that, Senate rules (Rule XXII) allow for the use of cloture.  A ‘cloture motion’ allows 3/5’s of the Senators (or 60 Senators) to end debate (or more accurately to limit further debate to 30 additional hours) and proceed with a vote on a bill.  After that, all a Senate bill needs to move forward is a simple majority of those present.

The right to debate, and the option to end debate with 3/5’s applied to all senate actions: bills and confirmation of presidential appointments.  However, due to the actions of Senate Democrats in November of 2013 and Senate Republicans in April 2017, Senate rules were changed to require only a simple majority to end debate, first for executive branch nominations and federal judicial appointments and then Supreme Court nominations.

The simplest way to describe the dysfunction of the voting requirements in the US Senate, is to say that (other than the five constitutionally prescribed enhanced voting requirements) voting on legislation requires only a simple majority but ending debate to vote for a legislative bill requires a 3/5 majority.

Instead for focusing on ‘cloture motions’ and the filibuster, there needs to be a re-orientation of voting requirements to pass a bill (legislation, not appointments – see previous section for voting requirements for appointments).  One way to divide the bills under consideration in the Senate, would be between tax/spend bills, and all others.

  • Bills that raise revenues or spend revenues (which will include the US government budget) should require a higher threshold to pass: for example a 3/5 majority. They should be consensus bills requiring broader approval.
  • All other bills should only require a simple majority vote.

Getting rid of the filibuster and the cloture motion will restore democratic legitimacy to the Senate.  Finding a compromise with respect to requiring enhanced voting (some appointments will require a higher threshold then others, some bills will require a higher threshold then others) will elevate the Senate to its rightful place: the greatest deliberative body on the world.

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