- The Washington Times - Wednesday, July 12, 2006

While the U.S. Senate is an institution steeped in tradition, its practices also evolve, reflecting shifts in political conditions and circumstances. And indeed over the last few years the upper body has altered the way it conducts business in some subtle but significant ways. These revisions reflect new institutional and political realities, like increased partisanship and one-party control of the legislative and executive branches of government.

Shifting practices play a key role in what gets done — or doesn’t — in Congress today. Appreciating these changes will help voters understand the possibilities and pitfalls of passing legislation in today’s Senate and will also help conservatives recalibrate their expectations for a Republican “majority” that now requires Democratic cooperation and 60-vote “super-majorities” to accomplish everything from confirming routine nominations to enacting complex new laws.

The way the Senate conducts its daily business through the use of Unanimous Consent Agreements (UCAs) is an excellent prism through which to view these changes. Walter J. Olezek of the Congressional Research Service, in his book “Congressional Procedures and the Policy Process,” quotes a U.S. senator who outlines why the upper body could not function without UCAs. “The way the Senate conducts its business hour after hour, day after day, week after week, and year after year, is Senators voluntarily waive the rights they possess under the rules … [senators] yield some right that they might have — the right to debate, to offer amendments, the right to do this, that or the other thing — waive their rights so that the body may proceed in a way that seems expeditious.”

Mr. Olezek also notes that while all Senate party leaders have used UCAs since World War II, they became more complex during the majority leadership of Sen. Lyndon B. Johnson of Texas (1955-1961). Under LBJ, Olezek writes, “these agreements were often comprehensive in scope, identifying, for example, when a measure was to be taken up, when it was to be voted on for final passage, and everything in between.”

He also notes that under the two subsequent majority leaders — Democrats Mike Mansfield of Montana (1961-1977) and Robert Byrd (1977-1981; 1987-1989) — UCAs became even more complicated and were widely used to direct the flow of complicated legislative measures.

But today’s blood-sport partisanship makes that earlier era appear docile by comparison — like the transition from “Ozzie and Harriet” to “Kill Bill Volume II.” For example, steps in the Senate legislative process previously considered routine are now exceedingly complicated.

Appointing conferees to resolve differences between the House and the Senate is one example. Senate Democrats now sometimes object to even routine requests to move to conference committee with the House. Adding these new obstacles near the end of the process makes enacting laws look like Sisyphus pushing a rock up the hill. This late-stage obstruction is a recent phenomenon. Democrats fear bipartisan-backed legislation will get reshaped by Republicans behind closed doors once the bill moves to the conference stage.

Adapting to this heightened partisanship, the Senate included instructions about the size and membership of the conference committee for the recently passed immigration bill before the legislation even reached the floor. In an unusual step, the May 11, 2006, UCA that laid out the terms of debate for the legislation specifically stipulated that the ratio of conferees would be 14 Republicans and 12 Democrats, and that those numbers would include the first seven Republican senators and first five Democratic senators on the Judiciary Committee.

Acknowledgement that every bill now likely needs 60 votes to pass is another illustration of the new world order. Recent UCAs also accommodate this contingency. For example, later this month the Senate will take up several bills related to the embryonic stem-cell debate. In a UCA agreement reached on June 29, Republicans and Democrats agreed to consider three bills on the subject and stipulated in advance that each bill required 60 votes to pass. Senate sources tell me the 60-vote test has been used recently in a couple of other agreements (on minimum wage and parental notification legislation), but again the practice is relatively new and uncommon.

Senate procedures have indeed adapted to new political realities. Complex and innovative UCAs reflect how partisan winds bend today’s legislative process. Democratic demands for more leverage in conference committees before they even convene or requiring 60 votes for passage of legislation are two recent examples. But these changes also underscore the challenges of lawmaking in the modern Congress and why wearing the moniker of “majority” in today’s Senate is a bit of an empty suit.

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