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Is the Senate Germane? Majority Leader Reid’s Lament

The story is told that shortly after Thomas Jefferson returned from Paris in 1789, he asked President George Washington why the new Constitution created a Senate. Washington reportedly replied that it was for the same reason Jefferson poured his coffee into a saucer: to cool the hot legislation from the House. [IMGCAP(1)]

Little could they have known then just how cool the Senate could be. Today, the “world’s greatest deliberative body” resembles an iceberg. Bitter partisanship has chilled relationships and slowed legislation to a glacial pace.

The Defense authorization bill is pulled in pique because the Majority Leader cannot prevail on an Iraq amendment; only one of the 12 appropriations bills has cleared the Senate (Homeland Security); an immigration bill cannot even secure a majority vote for consideration; and common courtesies in floor debate are tossed aside in favor of angry barb- swapping. This is not your grandfather’s world-class debating society.

Senate Majority Leader Harry Reid’s (D-Nev.) frustration level is code red. Minority Leader Mitch McConnell’s (R-Ky.) input level is code dead. The chief source of all this animosity and gridlock is the Democrats’ intentional strategy to pursue partisan votes on Iraq to pressure the administration and embarrass vulnerable Republican Senators. The predictable side effects have been to poison the well for other legislation and exacerbate already frayed inter-party relationships.

The frustration experienced by Senate Majority Leaders is nothing new and has been amply expressed by former Leaders of both parties. The job has been likened to “herding cats” and “trying to put bullfrogs in a wheelbarrow.” But there does seem to be a degree of difference in this Congress for a variety of reasons.

While Iraq certainly is the major factor, the newness of Reid on the job is another. It takes time to get a feel for the wheel. Meanwhile, there will be jerky veers into the ditch. Moreover, McConnell also is new to his job as Minority Leader. So both Leaders are groping for a rock shelf on which to build a workable relationship. Add to this the resistance from the White House at every turn and you have the perfect ice storm.

Reid’s big complaint has been the multitude of amendments that slow down work on most bills — especially non-germane amendments — and the way the Senate skips back and forth on amendments with no logical sequence. These patterns and complaints also are not new, but they are a growing obstacle to the orderly management of Senate business.

Reid has asked Rules and Administration Chairwoman Dianne Feinstein (D-Calif.) to look into expanding the germaneness rule. The existing rule applies only to general appropriations bills, post-cloture amendments and certain budget matters. The committee previously looked at broadening the germaneness rule back in 1988 and recommended an “extraordinary” majority vote (West Virginia Democratic Sen. Robert Byrd suggested three-fifths) for applying a germaneness test on specified bills. But the Senate never considered the change.

The House, by contrast, adopted a germaneness rule in the first Congress on April 7, 1789, drawn directly from a rule invented on the fly and out of desperation by the Continental Congress: “No motion or proposition on a subject different from that under consideration shall be admitted under color of amendment.” According to a footnote in the House manual, the rule “introduced a principle not then known to the general parliamentary law, but of high value in the procedure of the House.” The Senate chose to remain willfully and blissfully ignorant of the innovation — at least until necessity forced it to apply a germaneness test to appropriations amendments beginning in 1877.

Reid’s suggestion to extend the rule to other matters sounds reasonable enough but is bound to meet bipartisan resistance. Any attempt to alter traditional ways in “the upper house” is viewed by many Senators as destructive of the institution. The worst slur is, “You’re trying to make the Senate more like the House.” Already, Reid’s futile attempts to impose restrictive unanimous consent agreements that shut out most, if not all, amendments on important bills are mocked as tantamount to being a one-man House Rules Committee.

What are the chances of the Senate applying a germaneness rule to all floor amendments? History and common sense tell us they are somewhere between nil and none. Senators have little incentive to give up their freedom to offer whatever amendments they want, whenever they want. Others cite high public disapproval ratings of Congress as an imperative for reform. However, there is no evidence the public gives a hoot about non-germane amendments. Only if such amendments are tied directly to blocking urgently needed legislation might public ire be aroused sufficiently to bring pressure for change; and that case has yet to be made.

Nevertheless, the Majority Leader’s lament should not be dismissed out of hand. It may well be time for the Senate to undergo another self-examination through public hearings in Feinstein’s committee. When Sen. Trent Lott (R-Miss.) chaired that committee in the previous two Congresses, he showed a willingness to publicly air, and even sponsor, suggested changes in Senate rules. One such idea, to make secret “holds” public, has just been adopted as part of the lobby reform bill.

The ultimate barrier to any change in Senate rules is the super-majority needed to end a filibuster. Although, in 1975, the Senate reduced the number of votes required for cloture on most matters from two-thirds of those present and voting to three-fifths of the membership (60), they left the two-thirds threshold in place for ending debates on rules changes. That means an extraordinary bipartisan consensus is necessary for any significant reform. In the present climate that’s as likely as melting the polar ice caps. Then again …

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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