Current circumstances might seem to present real opportunities for Congress to reassert itself relative to its weakened role during George W. Bush's presidency.Footnote ¹ Large, unusually cohesive Democratic majorities in both chambers; unified government; and an administration staffed with people who know Congress well—all this might lead one to expect a productive working relationship permitting Congress wide scope of action. Nevertheless, the Senate's internal deliberative processes threaten to create difficulties so significant that they may outweigh these developments. Looking to the future of Congress, changes in Senate procedures and practices are important not only because of their effects on the institution's internal power structure. Left unchecked, they are also likely to have implications for the balance of power between the executive and legislative branches of government.

Legislative assemblies always grapple with the trade-offs between representation and policymaking, debate and action. But the Senate has traditionally struck a balance closer to debate than to action. In day-to-day terms, the body has long operated on the basis of unanimous consent, a manner of proceeding that obviously prizes collegiality over action.

Extensive consultation and negotiation undergird almost everything the body does. Even when the Senate appears to be engaged in a no-holds-barred policy battle, the fact that a given issue is being debated on the floor at all usually signals that a deal was struck somewhere along the way so that those on the likely losing side are still able to achieve at least some of their goals. The challenges of legislating in the body are so great that even before the current intense partisan conflict, the Senate was already regarded as nearly impossible to lead.

Rising levels of party conflict have created uniquely difficult challenges for the Senate. In the individualistic Senate of the 1970s and 1980s, party leaders had to grapple with what Barbara Sinclair (Reference Sinclair1989) termed the “unrestrained activism” of senators, forcing leaders to regularly resort to cloture processes to curb extended debate. But the development of the partisan filibuster is a challenge of a higher order. A recent phenomenon dating only to the early 1990s, the partisan filibuster enables the minority party to systematically block votes on the majority party's principal agenda items (Sinclair Reference Sinclair2007, 125–27, 281–83).

An individualistic Senate is one that still holds out hope for assembling oversized majorities on the basis of temporary bipartisan alliances. But in a party-polarized chamber where the Senate minority party demonstrates the sort of disciplined opposition that one sees in parliamentary out parties, a Senate majority party has extraordinary difficulty either recruiting bipartisan support or governing alone. This was the case in the 110th Congress, which broke all records for attempts at cloture (Binder et al. Reference Binder, Mann, Ornstein and Reynolds2009). But these difficulties have continued in the 111th, despite a significantly larger Democratic majority. To muster 60 votes in response to a partisan filibuster in the first session of the 111th Congress, Democrats needed to gain the support of all Democratic senators, a diverse group that includes Joe Lieberman (who identifies himself as an independent Democrat) and Democrats elected in solidly Republican states, such as Alaska, Louisiana, and Nebraska. In addition, any vacancies, such as those resulting from the ailing Robert Byrd (D-WV), the illness and death of Edward M. Kennedy (D-MA), and the long dispute over Al Franken's (D-MN) seat also required Democrats to find Republican senators willing to buck their party on procedural matters. Since Scott Brown's (R-MA) surprise special election victory, Democrats cannot achieve cloture in the second session of the 111th Congress without obtaining at least one Republican senator's support.

The need for broad consensus as a prerequisite for Senate action is the most serious institutional obstacle to national policymaking. That is why so much emphasis was placed on whether or not Democrats would reach 60 votes in the 2008 elections. Indeed, journalistic convention now speaks of the “60-vote Senate” almost as if it were a formal rule of the chamber.

More importantly, it appears that the 60-vote threshold has become an accepted norm even within the Senate itself. This marks a notable departure from earlier eras.Footnote ² A theme of scholarship on the institutional development of Congress is that members' beliefs about how the legislative process should function has an influence on the adoption of new rules, as well as on members' willingness to make use of existing rules.Footnote ³ In their book on the filibuster, for example, Wawro and Schickler (Reference Wawro and Schickler2007) document the restraint of nineteenth-century senators who would permit measures to come to a vote even when they knew they would lose, although during this period there was literally no procedural way to force an end to debate, even with a supermajority's support. The desirability and appropriateness of majority rule was a widely shared belief. As one nineteenth-century senator quoted in the book explained (2007, 46):

Can one imagine any contemporary senator making such a declaration? Simply put, a norm of majority rule is no longer operative in the Senate.

Instead, the dominant norm now is the belief that the Senate's supermajority requirements are what make the body uniquely valuable. In 2008, after two years as Senate minority leader, Mitch McConnell (R-KY) noted that being in the minority was not so bad: “The good news is that 49 is not a bad number in a body that requires 60. The United States Senate is the only legislative body in the world where a majority is not enough” (quoted in Freeman Reference Freeman2008). In light of flat declarations such as McConnell's, the relative lack of reform ferment in the contemporary Senate is striking. It's not particularly surprising that the minority leadership regularly insists on 60 votes. But it is surprising than that the majority offers so little public complaint about it. In response to obstruction, Harry Reid has been known to simply say, “The Senate is the body it is” (quoted in Hulse Reference Hulse2009). In other words, “this is just how we do things here.” McConnell's unequivocal claim that 60 votes are what the Senate requires appears to enjoy widespread bipartisan assent.

As precedents proliferate and journalists report on the “60-vote Senate,” this feature of Senate procedure becomes more institutionalized and more widely known outside the Senate. As a result, the distinction senators have historically drawn between voting for cloture on a bill and voting for a bill on its merits has begun to collapse. It has become less feasible for a cross-pressured senator to vote one way on cloture and another way on the bill itself. Pressure groups are less likely to be satisfied with a senator's explanation that he voted against a bill if he did not also attempt to block cloture, as well.

In turn, the incentives for other actors (i.e., the executive branch and, to a lesser extent, the judiciary) to make policy without dealing with Congress dramatically intensify. First, one could hardly blame other governmental actors who perceive that avoiding Congress to the maximum extent possible is the most promising way to make policy progress. Second, the Senate's internal difficulties make it hard for Congress to assert its preferences after the fact. If the president, executive agencies, or the courts overstep their existing boundaries or impose new policies, a Congress that cannot act cannot respond.Footnote ⁴

It is telling, for example, that the most important efforts to address the economic crises of 2008 proceeded without congressional action, or even despite congressional roadblocks. The most significant interventions in the crisis were the Federal Reserve's extraordinary actions, pushing the boundaries of its emergency authority under the Federal Reserve Act. As the crisis unfolded, the Fed decided the fate of a number of large financial institutions, providing credit to some and not others. It also claimed emergency powers to directly invest in commercial paper and mortgage-backed securities. One could easily argue that Congress should have provided authorization for such unconventional actions. But there was no realistic chance that the Congress would have provided this kind of authority in advance, and Fed chairman Bernanke did not seek it. In the end, these were probably the most important actions taken to deal with the crisis, more consequential than the stimulus package.

Congress's actions on the bailout for Detroit's automakers provide another example. With General Motors and Chrysler teetering on the brink of bankruptcy, Congress held a month of hearings and intense negotiations with the Bush administration to provide loan guarantees to the automakers. After a deal had been reached with support from the leadership of both chambers of Congress and the Bush administration, the House of Representatives passed the bill. But the package stalled in the Senate where the majority party fell eight votes short of cloture. Once the Senate declined to support the bailout, the deal was dead as far as Congress was concerned. But at the eleventh hour the administration announced that it already had the financial resources and the authority to extend the loans anyway. The Senate really wasn't necessary, after all. The loans were then extended on terms different from those that had been negotiated in Congress.

Two other procedural developments also seem to point to further decline of institutional power in Congress. Over the last two decades there has been a decline of committee staffing levels and a dramatic bulking up of staff levels in leadership offices.Footnote ⁵ A significant share of the new leadership office staff has been dedicated to “war room,” political, and “message” activities rather than to substantive policy expertise. In other words, the decline of substantive knowledge and manpower at the committee level has not been compensated for with increased policy expertise in leadership offices. In the aggregate, it appears that Congress has weakened its institutional expertise relative to that available in the executive branch.

Senate obstruction is not just confined to efforts to bring matters to a vote; it has also become far more frequently used on motions to appoint conferees to work out disagreements with the House. This obstruction has forced congressional leaders to simply avoid the conference process altogether and when possible to legislate by ping-ponging bills between the chambers. This method makes the process of achieving agreement less transparent and less deliberative. As Walter Oleszek (Reference Oleszek2008, 26) reports in his analysis, “amendments pingponged between the houses are usually crafted in private by a relatively small number of Members.” This may be the only way to get things done on the occasions when doing anything is possible, but it is hard to argue that this ad hoc process capitalizes on the deliberative or institutional strengths of Congress.

Legislatures are inherently ponderous, slow moving, and conservative by nature in terms of resistance to change. But recent developments in Senate procedure have greatly exaggerated these general tendencies. The weakening of the Senate's deliberative processes—routine obstruction hamstringing the body's ability to consider and pass measures, loss of committee expertise, avoidance of conference committees, ad hoc decision making in leadership offices—makes Congress less serious and substantive as a policymaking institution. Executive branch officials dealing with complex policy issues can be forgiven if they seek out workarounds rather than engage with an institution that has become harder to mobilize while devoting more legislative resources to politicking and less to fostering policy expertise. Perhaps the Obama administration, for example, would be better advised to start working with the Environmental Protection Agency to find ways to regulate carbon emissions under existing authorities rather than depend on the Senate to pass sweeping cap-and-trade legislation. Although internal congressional reforms and institutional adaptations may eventually help to counter these trends, it is also possible that the future of the Senate is to become progressively more of a veto player and a reactive/review body rather than an independent affirmative policymaker.