Government shutdowns are the dysfunction of new Senate norm

Congress faces another funding deadline this week, and with it looms the threat of another government shutdown.

Shutdowns, once reserved for dramatic standoffs and last resorts, are now becoming a normal way the Senate negotiates. That shutdowns have become so predictable is a reflection of the dysfunction of the Senate itself. 

Consider the dynamics of last month’s shutdown, which ended after the warring parties’ agreement to a “bipartisan deal.” The phrase suggests a skillfully executed and deftly negotiated agreement.

{mosads}But it wasn’t that at all. Last month’s shutdown ended with a promise that the Senate would engage in an open process, offer amendments, and, ultimately, vote on an immigration bill. The grand bipartisan deal was actually nothing more than a promise for the Senate to actually function.

Today’s Senate is so dysfunctional that just getting to normal operating procedure — considering bills, offering amendments, and voting — has gone from baseline to brass ring.

The “world’s greatest deliberative body” no longer deliberates. Nor does it do much of anything. The Senate works 2.5 days a week, spending its days locked in endless quorum calls while major bills are largely crafted by the leadership without the input of other senators. Once they come to the floor, no amendments are allowed and cloture is filed immediately, limiting debate to a maximum of 30 hours.

It wasn’t always this way. It’s unlikely senators today would even recognize the Senate of 20 years ago, where members regularly engaged in parliamentary battle on the Senate floor, offering surprise second degree amendments, overturning and creating new precedents, and unleashing procedural punishers like the two-speech rule on defiant minorities. 

The Senate considered a single bill for weeks at a time, with debate and amendments continuing without constraint. In his book, The Death of Deliberation, Dr. James Wallner links the use of this open-ended process with successful passage of controversial legislation.

Specifically examining the passage of 21 bills in the 102nd Congress (1991-92), Wallner notes that the Senate routinely considered up to 75 percent of the amendments filed to these particular bills. Notably, he identifies nine cases where the minority party had more amendments considered than the majority. 

The result? The cloture process was only needed to end debate on one out of 21 bills. In other words, there were no filibusters, so achieving 60 votes was not required. A majority of senators, having had their amendments considered and their views heard, decided to move forward at a majority threshold. 

This open, consensus driven process is unheard of in today’s Senate, where cloture (60 votes) is required at nearly every point of legislative consideration. 

By nearly every metric, today’s Senate might as well be on another planet from its predecessors. While many differences exist between the modern and recently historical Senate, there are two that stand out.

First, the modern Senate fails to deliberate. Wallner’s portrait of the active, transparent and collegial Senate of the early 1990s could not be more different than today, where an open legislative process is virtually unheard of.

Rather, the era of Majority Leaders Mitch McConnell (R-Ky.) and his predecessor Harry Reid (D-N.M.) has seen an unprecedented level of control exerted from the leader’s office that has stifled the rights of senators to participate in the legislative process through amendments and negotiation. Indeed, congressional expert Josh Huder accurately summed it up when he called this Congress “among the least democratic” in our history. 

When everything is decided in the leader’s office, individual senators are left with only the extreme outlets to exercise their rights — the filibuster and the shutdown. 

This has led to the feebleness of the Senate in another area, which is that senators appear to lack the critical knowledge of their rights as legislators and lawmakers.

For example, during last month’s shutdown, Sen. Sherrod Brown (D-Ohio) was quoted lamenting the failure of Republicans to consider a children’s health care bill, despite his “multiple” requests for floor consideration.

Brown, it seems, is ignorant of the very basic rights his office affords him as a duly elected senator, which includes the ability to begin consideration of any bill he wants.

This is a deeply unfortunate turn of events for the Senate, which is an institution characterized by the equality of its membership. A failure to utilize these rights — be it due to ignorance or discouragement from their leadership — diminishes the ability of senators to properly represent the people that sent them to Washington.

Until the Senate returns to an open process that prioritizes transparency over secret deal-making by a chosen few, the institution will continue to slide into dysfunction. Shutdowns and partisan filibusters will become the norm. No amount of meddling with the Senate’s rules or finger pointing at the other party will solve a problem that is fundamentally a failure to lead.

Rachel Bovard (@RachelBovard) is the senior director of policy for The Conservative Partnership, a nonprofit group headed by former South Carolina Sen. Jim DeMint aimed at promoting limited government.