Recent work supports “structured consent” approach to decision-making

(Editor's Note: This piece first appeared in LegBranch.org on February 27, 2019.)

Nearly ten years ago, I set out to tell a story about the Senate that was not being told. I wanted to understand better how the Senate actually worked at a time when most people were more interested in why it did not work.

My efforts culminated in the 2013 publication of The Death of Deliberation: Partisanship and Polarization in the United States Senate. I juxtaposed the then-reigning conventional wisdom among political scientists with what I saw happen inside the Senate, between its members, on a regular basis. Whereas political scientists usually saw gridlock characterized by ideological polarization and irreconcilable partisanship, I witnessed senators often overcoming their differences to get things done.

Senators achieved this by altering how they make decisions on a case-by-case basis, which enables them to pass legislation. I called this new pattern of decision-making among senators structured consent. By explaining how the Senate legislated in a contentious environment, structured consent contradicted claims, prevalent among political scientists at the time, that conflict between senators was zero-sum and thus an impassable obstacle to legislating.

In fact, structured consent also demonstrated that, despite appearances, the legislative process inside the Senate was mostly bipartisan. The Senate’s majority and minority leaders jointly manage the conflict that arises between rank-and-file senators whenever they debate especially controversial legislation. The term structured consent emphasizes how the two leaders arranged the legislative process ahead of time to create situations that are more conducive to passing legislation through the Senate.

What was once an iconoclastic notion now has gone mainstream in political science. For example, James Curry and Frances Lee, in a recent article on bipartisan lawmaking in Congress, lend credence to the concept of structured consent. Using their own dataset consisting of the major legislative priorities of each congressional majority party since 1975, Curry and Lee underscore the extent to which majority parties in both the House and Senate are not able to accomplish their legislative goals without some support from minority-party members. They find that constitutional features of our political system, like separation of powers and bicameralism, drive cohesive parties to use centralized procedures to produce bipartisan outcomes.

As I laid out in The Death of Deliberation, the structured consent pattern of decision-making was dependent on cohesive parties, as well as majority and minority leaders who were capable of mollifying the demands of their most ideological members. The bipartisan cooperation at the leadership level that underpins structured consent decision-making suggests that the forces motivating leadership behavior vis-à-vis their partisan colleagues are much more nuanced and give rise to different outcomes than previously expected. Curry and Lee note:

“expecting that congressional majority parties will crush their enemies Conan-the-Barbarian style, misunderstands the role of parties in our compromise-inducing system. Rather, leaders must typically negotiate bipartisan agreement and then convince rabid partisans on both sides to accept unsatisfying compromises.”

Thus, Senate parties and their leaders act in ways consistent with the empirical implications of structured consent. As I wrote in 2013:

“The underlying premise of my theory of Senate decision-making…is that the majority and the minority party leaders routinely serve a moderating function by acting within certain bounds to ameliorate the conflict and instability inherent in the institution and its broader environment.”

Though we agree on the moderating role of leaders, I would argue that by focusing only on final passage votes, Curry and Lee understate the amount of bipartisanship in the Senate by not taking into account the bipartisanship that characterizes the legislative process in advance of a vote on final passage. This methodology leads Curry and Lee to describe the accomplishments of the majority party in the 111th Congress, like the Affordable Care Act, as the “purest of party victories.”

By focusing on the parliamentary procedures that senators use to structure the entire process by which they consider especially controversial legislation, my approach in The Death of Deliberation yields a more complete understanding of the complex and multifaceted nature of what happens when the Senate legislates. When viewed from this perspective, it is clear that the Senate debate on the Affordable Care Act reflected bipartisan cooperation between Democrats and Republicans, not partisan confrontation.

For instance, senators agreed to eighteen unanimous consent requests during the debate before the Affordable Care Act passed on a party-line vote. As I demonstrated, those consent agreements were crucial to structuring the legislative process so that a bill could pass in the end. Senators used those agreements to structure the debate and amendment process to reduce uncertainty on the Senate floor. In that way, they made passage of the Affordable Care Act more likely.

All of which is to say that even when the Senate is at its most partisan, legislation still requires bipartisan cooperation to pass.