A single shot at Senate reform

Posted at 10:59 AM ET, 12/14/2010

By Ezra Klein

"Last week, the U.S. Senate failed for the first time in 48 years to pass an annual bill authorizing money for national defense," reports Philip Rucker and David Fahrenthold. But that's not all: Judicial nominations are stopped up. Congress hasn't passed an actual budget for next year. The filibuster is ubiquitous in a way that's not been true at any other point in American history. Rucker and Fahrenthold describe the Senate's problems piquantly: "An institution designed to chew over legislation slowly, refining and moderating bills passed by the House, now routinely chokes on them."

Yesterday, I argued that government is worst where it's not regularly pruned. The tax code is one example, and so is the regulatory state. But perhaps the best example is the Senate's rulebook, which is rarely reformed, and so increasingly misused.

Sen. Tom Udall has a plan to change that. And not just once. Where some senators are arguing for a specific reform to the filibuster, or a new rule on judicial nominations, Udall is arguing for a routine and predictable process whereby the majority will review the rules every two years and be able to change them by a majority vote. He calls it "the Constitutional Option," after the line in the Constitution guaranteeing that "Each House [of Congress] may determine the Rules of its Proceedings."

Udall argues that the Senate's resistance to revising its rulebook has signaled that there'll be no consequences for distorting and misusing the rules. The filibuster, for instance, has gone from a rarely invoked failsafe to a constant. As Rucker and Fahrenthold note, "during Johnson's three terms as majority leader, from 1955 to 1961, there was only one time when a vote was called to break a filibuster. In the past two years, there have been 84."

Udall doesn't want to tie the Constitutional Option to one or another reform. The point is the process, not the policy. He believes that the certainty of reforms will force restraint from the minority, lest the majority change the rules on them, and restraint from the majority, who realizes that the minority might win the next election and exact revenge. This sort of dynamic accountability, he says, is far preferable to a stagnant rulebook where sentences that meant one thing during one period in which certain norms governed the behavior of both parties are being exploited by parliamentary Machiavellians for entirely different purposes in another period with different norms and far more polarization.

For a longer introduction to the Constitutional Option, download this primer. The bottom line, however, is that Democrats are going to have to make a decision on this soon: The Constitutional Option can only be used on the first day of a new Congress. So they've got until early January to decide whether it's time to use it.

By Ezra Klein  | December 14, 2010; 10:59 AM ET