Congressional rules -- the variables here are majority and the minority, not Democrats and Republicans

As tensions rise over the prospect of passage of the most significant health care reform legislation since the passage of Medicare in 1965 and powerful interests pull out the stops to block that legislation at any cost, legislators on both sides of the divide are reaching deep into their bags of procedural tactics. When the majority Democrats use procedural maneuvers (reconciliation, self-executing rule, etc.) to bypass the procedural maneuvers (filibuster) of the obstructionist minority Republicans the GOP cries foul. (Timothy Noah gives a little background on the filibuster above.)

Yet what the Democrats are doing is no different than what the Republicans did when they held power. Norman Ornstein says he “can’t recall a level of feigned indignation” by members of Congress when they themselves used the self-executing rule more than 35 times in the last Congress controlled by the Republicans (’05-’06). Republicans can cry that “Deem and Pass” is unconstitutional but just a few years ago when roles were reversed and the Republican majority used Deem and Pass, the Democrats took them to court. The Federal Court ruled in the Republicans favor: Deem and Pass was constitutional.

But the problem isn’t really hypocrisy; it is the escalation of complex rules to pass simple legislation by our national legislative bodies. The process becomes so complex that the average citizen is left totally confused. When the minority uses “holds” and filibusters to block or impede the will of the majority then the majority becomes creative in ways to do the jobs they were elected to do. As Ezra Klein points out in his blog:

The minority makes the filibuster a constant presence. So the majority makes reconciliation a frequent friend. The Senate bogs down and so the House stops being able to trust that the Senate will be able to pass legislation, so they begin innovating methods of defensive legislating like self-executing rules and Deem and Pass. The whole thing is nuts, and it's done by both parties. The variables here are majority and the minority, not Democrats and Republicans.

Here is Ezra Klein in Newsweek discussing the procedural issues in a little more detail:

Ask a kid who just took civics how a bill becomes a law and she'll explain that Congress takes a vote and if a majority supports the bill, the bill goes to the president. That's what we teach in textbooks. In reality, the Senate is a contest to find who's better at manipulating the rules for purposes that they were never meant to serve. For the minority, everything depends on its skill with Rule XXII. For the majority, it's all about its understanding of the budget reconciliation process. For the country, it's a mess.

Rule XXII is more colloquially known as the filibuster. In theory, the filibuster is there to protect the minority's ability to speak its mind. This was particularly important in the days before airplanes and television cameras. The majority could rush something to a vote while crucial members of the opposition were stuck back home in their states. The filibuster gave the minority time to slow the process and rally the troops.

As time went on, the filibuster became more common as a tool of pure obstruction. Originally, a single senator could bring business to a halt indefinitely. In 1917 Woodrow Wilson persuaded the Senate to limit it: now, two thirds of the Senate could vote to invoke "cloture," which would close debate. In 1975 the Congress lowered the threshold once again, to three fifths of Congress, or 60 votes.

In theory, the filibuster should have become less common as it became easier to break. Unfortunately for the theory, between 2007 and 2010 the Senate had to call 214 cloture votes to break filibusters. That's more than had to be called between 1919 and 1976. And remember, 2010 is only three months old.

That's true, in part, because the minority party has started forcing more cloture votes even when it knows it'll lose. The goal is to slow the Senate to a crawl. After you call for cloture, you need to wait two days to take the vote. After you take the vote, there's 30 hours of post-cloture debate. And you can do this on the motion to debate, on amendments, on the vote on the bill itself … on everything, really. A single, committed crank (cough, Jim Bunning) can waste weeks forcing the majority to break his filibusters.

But the filibuster can, in certain circumstances, be defused altogether. The budget reconciliation process was created in the Budget Act of 1974. Back then, Congress passed a budget at the beginning of the year and then an updated version at the end of the year. Budget reconciliation was a way to, well, reconcile them faster than would be possible under the ordinary rules. It limited debate to 20 hours, and since the filibuster is nothing but an endless lengthening of debate (or a threat to do that), it short-circuited the filibuster.

Congress doesn't pass two budgets anymore, and reconciliation, like the filibuster, has expanded beyond its original purpose: it's been used to pass the Bush tax cuts and Reagan's tax increases, welfare reform, the Balanced Budget Acts of 1995 and 1997, the Children's Health Insurance Program and COBRA, and much more. Of the 21 reconciliation bills that have passed since 1981, 16 have been signed by Republican presidents. So the GOP's feigned astonishment that the maneuver might be used to pass a few fixes to health-care-reform legislation rings hollow.

But reconciliation has its problems. It's limited to provisions with a direct impact on the federal budget, and a rule passed by the Democrats further limits it to laws that reduce the deficit (a response to Bush's using reconciliation for budget-busting tax cuts). That means that to activate reconciliation's 51-vote magic, legislators have to write specific bills that abide by the rules of reconciliation. That's fine for a tax change, but it wouldn't work for, say, regulating private insurers. Disagreements are settled by the Senate parliamentarian (the vice president can overrule, though that doesn't happen in practice).

This is the consequence of running the Senate by twisting the rules rather than following their spirit. It's not just that you have the 60-vote filibuster process competing against the 51-vote reconciliation process. It's that you have the Senate wasting days and weeks in cloture votes for doomed filibusters and rewriting legislation to conform to the odd limits of the reconciliation process. And as the minority becomes less responsible with the filibuster (and hoo boy, have minority Republicans become less responsible with the filibuster), the majority needs to use reconciliation more often.

Even a kid in civics class would recognize that this is all nuts. The Senate should eliminate the filibuster and budget reconciliation, and require either a 51- or 60-vote majority. Exploiting loopholes is no way to run a country.

We can argue the “goose and the gander rule” that if it is O.K. for the Republican majority to use certain procedures then it should be perfectly O.K. for the new Democratic majority to do so also. That’s fine as far as that argument goes but there is a deeper problem that should be resolved and that is the complexity of rules used to overcome undemocratic procedures such as the filibuster. The United States Constitution calls for super-majorities for the passage of constitutional amendments and the overturn of Presidential vetoes. There is no such requirement for a super-majority to pass simple legislation by the Senate. It’s time to wipe the slate clean.