Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from the bully on the block.
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.