Opinion and Forefront

MUTZ: Arcane rules will haunt the new Congress

December 15, 2012

John MutzThe priority for Congress as it convenes in a lame-duck session is to reach an agreement that averts a fiscal crisis. To accomplish that goal, it may also be necessary to agree on major changes to three arcane procedures that govern the House and Senate.

Cloture, reconciliation and sequestration are not well understood by the public, but these motions can be used to accomplish the opposite of the originally intended purpose.

For example, cloture is aimed at bringing debate to a quick end. Sometimes referred to as closure, it is now a way for a minority of senators or an individual senator to block legislation. The minority threatens a filibuster, which signals to the majority that it must have 60 votes to break the filibuster, thus killing the legislation unless the majority can get some minority votes or use another arcane procedure.

Cloture must be approved by three-fifths of the body. By custom, both minority and majority have an understanding about this process that no longer forces senators to actually filibuster. Instead, they threaten to talk a bill to death, but don’t have to spend the time and energy to do it.

Many scholars believe this unusual arrangement operates in the spirit of the founding fathers, who believed in strong checks and balances. Others believe it erodes “majority rule.”

Although the process sometimes seems awkward, it is a check on possible “abuse of the majority.” The Senate by its makeup and term of office is supposed to take the longer view and many times our system of government is better served by not acting than by acting imprudently.

Reconciliation, also intended to expedite the legislative process, limits debate on a budget bill to 20 hours in the House or the Senate. The process arose from the Congressional Budget Act of 1974. It can be used to approve hard-to-pass legislation as long as the parliamentarian agrees.

For example, reconciliation was used to pass a portion of Obamacare after the Democrats lost their 60th vote in a special Senate election in Massachusetts.

This rule gives entirely too much power to the presiding officer and his parliamentarian. Any senator may raise a procedural objection to a provision believed to be extraneous, which is then ruled on by the presiding officer, customarily on the advice of the parliamentarian.

Such a ruling can be overturned only by a vote of 60 or more senators. The parliamentarian can be replaced by the majority leader if they don’t agree on a ruling.

The biggest challenge facing Congress and the president is likely to be sequestration. It is action taken by Congress to force reduction of the national debt by increasing tax income and employing automatic, across-the-board spending cuts to the discretionary federal budget. It is fallout of the Budget Control Act of 2011, which mandates that increased taxes and spending cuts are to begin Jan. 1, 2013.

So what’s wrong with reducing the deficit and braking the impasse that has gripped Congress? It will hollow out the military, scream some Republicans. It could drastically reduce social programs, echo Democrats.

The “dire” consequences cited by advocates are the real incentive for action. That’s the brilliance and the genius of the idea. The sea of red ink that engulfs our economic system is the biggest threat to our way of life.

For this reason, the successful use of sequestration may be the most important legislative accomplishment of this era.•

• Mutz has held leadership positions including lieutenant governor and president of Lilly Endowment and PSI Energy. Send comments on this column to ibjedit@ibj.com.

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