Filibuster change won't fix flawed appropriations process

(Editor's Note: This piece was first appeared in The Hill on February 13, 2018.)

Last month’s government shutdown has given a boost to Republicans pushing to change the Senate’s rules to limit minority obstruction.

Their target? The legislative filibuster.

For some members, the funding impasse is just the latest in a series of events underscoring the need to change an iconic, if outdated, feature of the Senate.

As evidence of the broken appropriations process, they point to the fact that Democrats have repeatedly prevented the Senate from taking up individual funding bills in recent years. That is, the minority has filibustered (or threatened to filibuster) the motion to proceed to those bills to extract concessions from the majority on funding levels and policy riders. In the face of such obstruction, they argue, it becomes impossible for the Senate – and, in turn, Congress – to complete its appropriations work in a timely manner.

The result of all this is that Congress routinely delays the consideration of government funding until the last minute, at which point all appropriations bills are combined into one large omnibus measure. In that scenario, senators are predictably confronted with a take-it-or-leave-it proposition that undermines the deliberative process. In the event that the Senate is unable to pass an omnibus bill, it simply extends current funding in a continuing resolution.

Given this reality, more and more Republicans are calling for ending the ability to filibuster the motion to proceed to – i.e., to begin debate on – appropriations bills. The assumption – which is entirely reasonable - is that passing bills would be easier if the Senate could first start debating them.

(Notwithstanding the Republicans’ claim, it’s noteworthy that Democrats did not filibuster any appropriations bills in 2017, and the Republican majority only rarely tried to begin debate on such measures in the years since regaining control of the Senate in 2014.)

A non-debatable motion to proceed would not have stopped the continuing resolution from stalling in the Senate last month. The way in which the chamber considered the funding bill already precluded Democrats from filibustering the effort to open debate. Avoiding a shutdown in that scenario would have required senators to eliminate the filibuster altogether, which is something Republicans do not appear to be seriously considering at the moment.

Even so, Republicans were not powerless in the face of Democrats’ obstruction. Moving forward, the majority can reduce the likelihood of a shutdown simply by enforcing the Senate’s existing rules and practices.

For example, in certain circumstances, Rule VIII already permits a non-debatable motion to proceed when the Senate first reconvenes after adjourning. While the maneuver is not guaranteed to work in every instance, Republicans can signal their determination to begin debate on a bill over the Democrats’ objections simply by trying it.

Republicans can also enforce Rule XIX – the so-called “two-speech” rule – on motions to proceed to appropriations bills. Under this rule, each senator may only speak twice in the same legislative day on any one question. Once a senator has given two speeches, that senator may not speak again. The Senate votes when there are no senators on the floor who wish to, and may, speak. Republicans can thus force Democrats to mount a “Mr. Smith Goes to Washington”-style “talking” filibuster to delay the Senate from beginning debate on any bill, not just on appropriations measures.

Additionally, the Senate’s precedents state that the presiding officer must call a vote on the pending business “when a senator yields the floor and no other senator seeks recognition.” When coupled with the two-speech rule, this precedent places the burden of delaying a vote on an appropriations bill squarely on the minority’s shoulders.

While eliminating the filibuster on the motion to proceed would give Republicans another tool to overcome minority obstruction, doing so has far-reaching consequences. For starters, it would create a new category of super-senators by increasing the Appropriations Committee’s power relative to that of other panels. Legislation always follows the path of least resistance. Removing a barrier that bills reported by the Appropriations Committee face, while preserving it for measures originating elsewhere, will ensure that more of the Senate’s business will come to be tied to government funding. The ability of individual members to influence these decisions will be inevitably limited to ensure that the underlying government funding is not jeopardized. As such, changes to other rules to protect bills reported by the Appropriations Committee from rank-and-file senators on the floor will be needed to preserve the intent of the rule.

A non-debatable motion to proceed would also further empower the majority leader relative to the rank-and-file. Under the Senate’s current rules and practices, any member can move to proceed to a bill. Senators instead defer to the majority leader to do so because it is convenient for them. A non-debatable motion to proceed allows senators to force a vote in relation to a bill or issue in the event they are prevented from doing so by the majority leader filling the amendment tree. To protect against this, Republicans will be pressured to change the rules again to allow only the majority leader to make a non-debatable motion to proceed.

Finally, because this reform can be filibustered, Republicans will be forced to use the nuclear option to pass it over the Democrats’ objections. Yet going nuclear to enact this reform, even in this narrow instance, will further undermine the Senate’s rules more generally. It would be the third time since 2013 that the majority acted unilaterally to change the Senate’s rules to overcome what it viewed as illegitimate obstruction. And as the ability of majorities to change the Senate’s rules at-will becomes routine, the remaining super-majoritarian provisions that periodically frustrate them are placed in greater jeopardy.

Given these concerns, Republicans should reject calls to eliminate the filibuster on the motion to proceed to appropriations bills. Fixing the appropriations process does not depend on it. And elimination poses greater issues for the Senate.