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Senatorial Scrums Make Members into Rubber Stamps

Look behind every major legislative success the U.S. Senate has had in recent years and you will find a small group of senators who negotiated quietly in private. Working under the supervision of party leaders, these groups are tasked by the collective, explicitly or implicitly, with resolving difficult issues, writing legislation, and helping to structure the process by which the Senate considers important bills.

They resemble scrums in rugby. They are highly competitive, also decisive (eventually), and also opaque to anyone outside of them—which happens to be most everybody.

The  Oxford English Dictionary defines a rugby scrum as a formation used to restart play. Once one has taken shape, a ball is tossed into the middle. The other players on the field watching their teammates struggle over it have no direct knowledge of what is happening inside the scrum. Eventually, the ball emerges, at which point it is picked up by a player who charges down the field toward the other team’s goal line.

Instead of competing over a ball, the members of a senatorial scrum are crafting legislative proposals that can make it through the chamber largely unchanged. And just like the non-participating rugby players who hang back from the action, waiting for the ball to come out, the other senators try to discern what is happening from the outside, waiting for an agreement to emerge so that they can cast their votes.

Senatorial scrums are useful in dealing with controversial issues in the context of must-pass legislation. But this has distracted from the fact that their regular use undermines the Senate’s deliberative function. Making decisions in this way inevitably limits the policy ideas given serious consideration to those supported by the scrum’s members. Importantly, it entails a floor process (by which the full Senate considers compromise agreements) that is structured so as to obstruct other members from amending the bill. Restricting the policies considered in this way makes it more likely that the bill will not be fully vetted before it is signed into law.

In hampering the participation of members of the wider body, it makes them legislative rubber stamps. And frustration with this state of affairs, not surprisingly, appears to be growing.

Take the tumultuous GOP efforts to repeal and replace Obamacare. However this issue may ultimately be resolved, many senators have complained about the secretive way the process has unfolded. This presents a puzzle. The tightly controlled and secretive process embraced by the Republican leadership in crafting their alternative was supported by the rank-and-file, even though they knew that that support cut them off from the process. Senators were thus complicit in the very building of the barriers between them and the lawmaking process.

The sheer extent of member discontent this time around suggests that Republicans may reject the scrum in the future, in favor of a more deliberative and inclusive process when the Senate takes up the budget for Fiscal Year 2018, the debt ceiling, and tax reform. It only takes a small group of discontented members to have a large impact on how the Senate makes these decisions.

But changing how the body works is harder than this suggests. For starters, senatorial scrums persist despite these frustrations because, not only is there a considerable up side for rank-and-file members (which I will get to), but there is a widespread perception that the costs of changing how the Senate works are high relative to maintaining the status quo.

Today’s senatorial scrums evolved out of the freewheeling environment of the 1960s and 1970s. Senate decisionmaking during that period was more inclusive and deliberative than it is now. At the time, members deliberated on controversial issues in the committees and on the floor. It was not unusual for a legislative proposal to have had a robust debate and amendment process on the floor after a committee completed its own robust consideration of the measure. Rank-and-file senators, committee chairmen, ranking minority members on committees, and party leaders all actively participated in this process. Indeed, there were few constraints on the ability of interested members to have input in the Senate’s work.

This open way of deliberating encouraged more and more senators to participate in lawmaking. This, in turn, led to the establishment of new norms of behavior regarding floor debate and the amendment process. The result was more debate, more amendments  and, eventually, more minority obstruction. This last factor meant that it took more time for the Senate to pass bills. Reflecting back on the period, former Senator Howard Cannon (D-Nev.)  remarked: “It sure took a hell of a lot longer to get things out of Congress.”

Senators came to believe they needed a new way of making decisions to maintain the Senate’s legislative productivity.

Eventually they reined the process in. They deferred to their party leaders to manage it because the costs of maintaining the inclusive way of making decisions had grown too high. Limiting the number of members actively involved in crafting bills reduced the time needed to consider important legislation and, by extension, increased the number of issues the Senate could address. It also made lawmaking more orderly and predictable.

This basic arrangement is reflected in how the Senate operates today. Unlike in the past, important decisions typically are made off the floor in negotiations held under the auspices of party leaders. Any legislation produced in these secretive sessions almost always bypasses committee consideration, and is brought directly to the floor of the Senate, where it is often ratified without significant alteration. Alternative policies are rarely given serious consideration while the bill is on the floor, due to concerns that any successful change to the underlying legislation would upset the compromise agreement, thereby jeopardizing the bill’s chances to be signed into law. The result has been a dramatic diminution in the ability of rank-and-file senators to impact policy outcomes.

There are, as I said, benefits for rank-and-file members. These mostly accrue to those senators who support their party’s legislative agenda and believe that highly coordinated team play in a tightly controlled process is necessary to achieve legislative success. For these members, the benefits of the scrum outweigh the costs.

Then, too, even members who are not entirely supportive of their party’s agenda benefit. By shifting the job of managing the Senate, negotiating compromises, writing legislation, and scheduling votes to others, senators give themselves a way to evade responsibility for any suboptimal policy outcomes that might ensue. Neither do many of them mind the greater predictability of a Senate floor that has tamed the freewheeling nature of deliberations that has in other eras characterized the body. This can help make senators’ professional lives easier to manage.

Rejecting scrum-based decisionmaking in favor of a more inclusive process is hard, given these advantages. Changing the way institutions operate, after all, usually involves altering the internal balance of power in such a way that some members will benefit at the expense of others.

The relationship between senators and their leaders is one between principals (the rank-and-file) and the agent they “hire” to do a specific job (the leader). Leaders do that job in a variety of ways, including: determining the agenda; influencing the substance of legislation; scheduling legislation for floor consideration; forming majorities to pass legislation; enhancing the party image; serving as a public spokesperson with the media; and individually helping members pursue their own idiosyncratic goals. Rank-and-file members, having given leaders powers to execute these duties on their behalf, must allow them to make important decisions regarding the legislative process, and must allow them enough resources to influence the behavior of other members to induce them to get with the program. Absent such deference from the rank-and-file, leaders cannot do the job for which they were hired.

The problem comes when the rank-and-file want to change how the Senate works to the extent that doing so could weaken the leader’s control over the process. It’s a zero-sum game: abandoning scrum-based decisionmaking in favor of a more inclusive process reduces the large role currently played by the leaders, whether in crafting legislation or determining how the Senate considers bills, or facilitating the participation, on the floor, of interested members.

Leaders, dealing with a restive rank-and-file, can thus be expected to emphasize the costs associated with any transition away from the status quo. They are also likely to argue that the costs of an open and freewheeling process have increased over time, and that they, the leaders, should actually be given even greater control over the process to protect the party’s ability to enact its agenda. Change is presented as chaotic, and likely to lead to the majority’s being unable to enact its agenda—most ominously of all, as likely to force members to cast controversial votes that will be used as fodder for campaign ads in their next election. Decentralizing the decisionmaking process is presented as the perfect recipe for a party’s losing its majority.

Changing how the Senate works is hard but not impossible. Arguments that ignore present frustrations and focus exclusively on the costs of changing course will only be successful to the extent that individual senators continue to be persuaded that a centralized process is vital to achieving legislative success.

Reader Discussion

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on August 02, 2017 at 10:11:11 am

This essay all but entirely ignores the 800 Lb. gorilla on the floor of the Senate (and House): Scrums do not so much make legislating more efficient, they make Campaigning more efficient. They free-up Senators so they may attend fund-raiser, after fund-raiser instead of doing the job they were sent to accomplish.

When I vote for my Senator, I want my Senator to be apart of the process, instead, they only become part of the problem. My Senator doesn't get a seat at the table, because room at it must be made for lobbyists and special interests.

I don't buy the argument, "[b]y shifting the job of managing the Senate, negotiating compromises, writing legislation, and scheduling votes to others, senators give themselves a way to evade responsibility for any suboptimal policy outcomes that might ensue" - my Senator still has to cast a vote for the legislation and that's what I remember, not who wrote it. IN FACT, knowing they played zero-part in writing or debating the legislation makes me even angrier with bad outcomes - to restate another way, my vote for a Senator (or Representative) is predicated on their going to Washington to participate in the process by protecting and promoting my state's, my individual, best interests. Some guy in leadership, who I don't know and who has no obligation to me or my state is not going to look out for either of us.

Recently, DNC announces they will not withhold campaign funding support from Pro-life Democrats. HA!

Democratic leadership can boldly pronounce they will not deny support to so-called, “Pro-Life” Democrats, which really must be translated, as “Incumbent Pro-Life Democrats”; as these have been so quarantined, (castrated really) within the party apparatus as to possess no exercisable power to speak of, and the DNC know they pose no threat to their Pro-Abortion Platform.

My own Pro-life Senator Bob Casey, Catholic Bob Casey, Son of the last Governor Bob Casey who took PP all the way to the Supreme Court, can be counted on by PP and the DNC every time to cast his “No” vote in opposition to defunding Planned Parenthood, (because of all the good they do for woman).

Incumbent Pro-Life Democrats are little more than Place Holders for the DNC, who merely tolerate their presence purely for the utility they have for securing Majorities. I would look for the DNC and PP to provide more financial support, not to Pro-Abortion Incumbents, but to these Pro-Life Dem incumbents up for reelection in 2018, who may be, like Bob Casey, from a state that went Red in 2016, making him particularly vulnerable, should 2016 be prove to be more fate than fluke.

And People think the Executive branch is currently the most dysfunctional, Priceless!

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Paul Binotto
on August 02, 2017 at 12:06:21 pm

This essay is helpful as far as it goes, but I think it overlooks the factor of the unprecedented ideological uniformity and discipline of the parties, as exemplified by the numerous Democrats who dutifully voted for Obamacare (a good example of legislation produced by scrum) knowing that it would likely lead to their defeat in the next election. The full story of this unfortunate change in the way the Senate operates needs to take account of the way the parties have changed off Capitol Hill.

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djf
on August 02, 2017 at 14:52:22 pm

Look, it’s all well and good to cite this or that abstract principle of law that exists without an enforcement mechanism. But there is another abstract principle of law that DOES have an enforcement mechanism: Elections.
In 1774, Edmond Burke delivered his Speech to the Electors at Bristol at the Conclusion of the Poll, including the following: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” And the good folk of Bristol proceeded to throw his ass out of office—presumable to elect someone who WOULD follow their opinion.
In short, it matters little what you or I might think about what a politician should do—unless we can back it up with consequences for disobeying. The only way we get rid of scrum politics (assuming we want to) is to make such politics expensive for the politicians. And right now, it isn’t.
Sure, we can get mad at Congress. Heck, Congress regularly have a very low approval rating. But the same people who tell pollster how much they hate Congress also report that they’re going to re-elect their Congressman. To quote the Capital Steps, “We re-elect ‘em anyway, so what the hell do they care?”

Incumbent Pro-Life Democrats are little more than Place Holders for the DNC, who merely tolerate their presence purely for the utility they have for securing Majorities.

Yup. Just as the GOP tolerates Collins and Murkowski. And just as any party tolerates any politician. Each party would be happy to elect a candidate that doctrinairily conforms to every point of the party’s platform—provided such a candidate existed, would run, and would win. In the absence of that option, parties must tolerate compromises—picking between candidates that seem doctrinally pure but unpopular, or candidates that seem doctrinally weak but popular. See, for example, Trump.

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nobody.really
on August 02, 2017 at 16:32:22 pm

"Just as the GOP tolerates Collins and Murkowski. And just as any party tolerates any politician." You betcha, Nobody, 100%! I see the problem as a real dereliction of reelection.

Both parties are guilty and both abuse the process. The problem with voting the bums out, is they often 1) go unchallenged (it is frequent in the lessor state offices in PA for candidates to run on both tickets - judges and petty officials do it all the time in our primaries. 2) both candidates derive from other elected offices and already possess all the same bad habits or if new to elected office, are castrated if they resist/refuse to play along.

Trump is an example but also (in my opinion) an aberration of fate - I believe Scalia's vacant seat played a much bigger role in Trump's election than anyone is willing to admit; because then they would have to also admit that American's aren't as Progressively minded as the narrative likes to portray. So we'll blame on Russia, on deplorables, email scandals, rust belt anger; all safer narratives.

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Paul Binotto
on August 02, 2017 at 17:43:56 pm

“Just as the GOP tolerates Collins and Murkowski. And just as any party tolerates any politician.” You betcha, Nobody, 100%! I see the problem as a real dereliction of reelection.

Both parties are guilty and both abuse the process.

What makes you say that this represents an "abuse"?

Sure, there are many game-theoretical and public choice issues in how we get the politicians we have. But most of the frustrations people feel arises from our unwillingness to acknowledge that MOST PEOPLE DISAGREE WITH US. My personal preferences do not reflect the preferences of the majority. Nor do yours. We live in a pluralistic society, where conflict, frustration, and compromise are normal, natural, and inevitable.

Of course, politicians have learned that voters like us don't like to hear this, and regard such explanations as excuses for the politician's failure to cater to our every whim. So they dissemble. They blame their failure to achieve our goals on dark conspiracies or somesuch.

Look, each party has a platform drafted by their most ardent adherents. Pretty much no presidential candidate feels bound to conform to its party's platform, because doing so would be political suicide. But neither does the candidate acknowledge that he's deviating from the platform, for the same reason.

Politicians, just like voters, have a variety of views. They pretend to agree with you--or at least, not to disagree with you--about everything, because it's to their advantage to do so.

Why are the Republicans having such a hard time replacing Obamacare? Because it was easy to get everyone to focus on some aspect of the program they didn't like, and to rally people in opposition. The hard part is getting people to agree on what they want instead--and the Republicans never did that. So there's really nothing disingenuous about the fact that people could agree that they don't like where they are, but disagree about where they should go. Rather, that's NORMAL.

Likewise, there's nothing "abusive" about parties nominating candidates that don't conform to their platforms in every particular. If they did otherwise, they'd pretty much have no candidates--or no electable candidates, anyway.

If there is any "abuse" in this system, it is the abuse of expecting others to conform entirely to your own preference. I can't recall which candidate said that the only time he ever voted for a candidate that he agreed with entirely was when he voted for himself--and only during his FIRST election. By the time of his second election, he had been compelled to adopt positions that even he didn't really support.

That's normal. That's compromise. That's what we should expect. The abnormal, abusive aspect is that people have been fed the idea that compromise is a dirty word, and that they should expect to get everything they want--other people's preferences be damned.

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nobody.really
on August 02, 2017 at 18:37:58 pm

While his father's stance on this issue was apparently sincere (and he paid a price for it), Bob Casey's pose as a "pro-life" politician is obviously a charade. Those of his voters who claim to be "pro-life" but vote for him anyway are also putting on a charade, if only to fool themselves.

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djf
on August 02, 2017 at 18:51:49 pm

nobody:

Well said - sadly it is all true.
Indeed, it is another reason why replacing the scrum will be difficult as it does allow a politician to seemingly adopt a position he "did not really support", i.e., excuses offered by some GOP types for their recent vote against O-care.

Of course, the most salient reason for doing away with the *scrum* is the very same reason why it was put in place. The scrum, in theory, allows for a more *efficient* Senate (House, also). The WHOLE point of the Senate and concurrent majority requirements in order to pass legislation was to 'MAKE IT INEFFICIENT" and more deliberative.

Scram the Scrum!!!!!

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gabe
on August 02, 2017 at 19:07:21 pm

By abusive, I do not mean, not getting my way.

I mean, permitting lobbyist or aides to write the bill unsupervised; not knowing what is in a bill; not participating in deliberation, spending more time electioneering and fund raising than legislating, incessant political grand-standing, delegating legislative functions to the Executive, it goes on and on; and has nothing to do with getting what I want. And, pertaining to the topic of this essay, these things (in my opinion) do not occur to make legislating more efficient, but to make chronic campaigning and fund-raising more efficient - that in my view is an abuse of power, even if it is the reality of governing in the 21st century. So in my view, it is good that more and more Senators are bucking the system and objecting to Scrums.

And, in the case of "parties nominating candidates that don’t conform to their platforms in every particular", the abuse, in my opinion, is that the members are silenced from debate. This is not good for the party, nor for the country in the long run. But this was not my point.

My point was, the DNC (in this example) has so effectively sequestered non-conforming members from expressing opposing views in debate, and by bullying them into voting the party line, that they have no worries about helping them to get elected, because they know they are toothless to rock the boat. IT is only the radical outside groups that scream, "There's no place for Pro-life people in our party", or cause DNC leadership to cry this in response, etc. In this case, the DNC is trying to sound open-minded and inclusive of all viewpoints, but this is pure hypocrisy for the reason I state at the top of this paragraph, so yes in this sense, the member becomes little more than a place holder and the member's state's voice does not get heard or their interests protected. That in my view is Factional Democracy and its not good for our Republican Democracy form of government.. This shut-out of opposing views is not good for party or country. I know GOP must act similarly. Perhaps, it is not meant to be good for it, perhaps it is meant to undermine our system of government and make it a pure Popular Democracy; but if we all mostly agree this is the best form of government for U.S. then this is not good for its long term survival; it may already be too late.

I do consider so-called Scrum to be an abuse, because it essentially delegates my Senator's representation of my state and myself to another State's Senator.

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Paul Binotto
on August 02, 2017 at 19:11:02 pm

Quite right and I stopped voting for him long-ago because of this. And I fully agree with your comment that the essay "overlooks the factor of the unprecedented ideological uniformity and discipline of the parties".

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Paul Binotto

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