Delayed Republican Revolution? Testing
the Limits of
Institutional Constraints on the Senate
Majority Party
Bruce I. Oppenheimer
Vanderbilt University
The Republican Revolution in Congress
following the 1994 election was not a bicameral event. It
was exclusive to the House of Representatives. For
a number of reasons, many of which reflect institutional and political
differences between the two houses, the Senate, despite urging and some
modest gestures, proved more resistant to the impulse. It,
however, has not remained unchanged. The
Senate has done so more gradually and less extensively than the House,
in what, until recently, would be more accurate to describe as
evolution, not revolution. Although the
events in the House, in organizing for the 104th Congress and in its
early days, were a catalyst to changes the Senate made later in 1995,
the implementation and effect were not immediate. Instead
the senators were confronted with a tension between what Barbara
Sinclair has described as a Senate of "fairly
cohesive party contingents that exploit Senate rules to pursue partisan
advantage, but also by the persistence of the Senate individualism that
developed in the 1960s and 1970s." 1 Despite party votes and
party unity levels that were nearly identical to those in the House, the
ability of senators to exercise their individual prerogatives and the
capacity of a unified minority party to conduct party-organized
filibusters meant that the Senate was frequently the graveyard for a
range of policy initiatives that the House Republican leadership was
able to pass with great efficiency and relative ease during 1995 and
subsequently.
The House Republicans' frustration with the
inability of Republican Senate leaders to marshal their troops and to
overcome the opposition of Democratic senators has continued well beyond
the 104th Congress and has had the company of a Bush White House since
January 2001. Prior to the Bush presidency,
dissatisfaction with the Senate was muted because Clinton's threat to
and use of the veto was an even more imposing obstacle to the policy
goals of House Republicans than was the Senate.
After
a decade of incremental change, there are now some indications that
Senate Republican leaders have crossed a threshold and are taking more
drastic action, perhaps a delayed revolution. During the 108th Congress
and more noticeably with an enlarged and more secure majority following
the 2004 elections, Senate Republicans and their leaders have threatened
to confront Democratic filibusters that have blocked a handful of
President Bush's judicial nominations. Since
mid 2003, Majority Leader Bill Frist has episodically suggested
alternative means for ending debate on nominations, including one
labeled the "nuclear" option. In addition,
for the first time at the start of the 109th Congress, Senate
Republicans finally implemented rules regarding term limits for Senate
committee chairs, a provision initially agreed to nearly a decade
earlier. More importantly, there was the
first indication that the Senate Republican Conference might sanction a
senator through the denial of a committee chair position for not
adhering to party policy positions. And
although a contrite Senator Arlen Specter was elected to chair the
Judiciary Committee, it was a leadership backed warning shot to other
moderate and maverick Republican senators. Finally,
Senate Republicans for the first time ceded greater discretionary
authority to their majority leader that he can use to foster party
loyalty among Republican senators. The
Senate Republican Conference has given its majority leader the authority
to appoint half of the available seats on the most valued Senate
committees, while the other half continue to be filled on a seniority
basis.
In
this essay I propose to address a range of questions about the efforts
of the Republican Senate leadership in pursuing these non-incremental
changes after nearly a decade of accepting evolutionary change. What circumstances have fostered the move to a
more aggressive strategy of party control in the Senate? What
effect will the application of terms limits on committee chairs have
for majority party control of the Senate? Will
the Specter case constrain the behavior of Republican moderates and
mavericks? And what are the costs and
benefits of changing the way cloture procedures are applied to
nominations? Collectively are these
changes and their extensions likely to produce a level of party
discipline for Senate Republicans and their leaders to which House
Republicans have become accustomed? Or are
institutional constraints and senators' motivations so different that
Senate individualism will withstand a major step toward greater partisan
control?
Before
addressing those questions, however, it will be useful to summarize the
changes that occurred during the evolutionary period from 1995-2002.
The Evolutionary Period
In
the 104th Congress, Republican senators made only modest changes to the
workings of the institution, especially when compared to the House. Aside from cutting the number of subcommittees
and reducing committee budgets and staff, few changes were made early in
1995. A two-thirds cloture rule for Senate
rules changes placed a severe constraint on using the floor to enact
them. Were it not for a provoking
incident, it is doubtful that the party conference would have initiated
many internal party changes either. But
when Appropriations Committee chairman, Mark Hatfield (Ore.), the only
Republican senator to oppose a balanced budget constitutional amendment,
cast the deciding vote, conservative junior Republicans proposed
removing Hatfield from his chairmanship. Although
unsuccessful in that effort, they did get Majority Leader Dole to
establish a Conference task force to make recommendations about issues
of party loyalty. The recommendations it
produced followed the path House Republicans had cut. In
July the Conference agreed to limit committee chairs to six years,
among other changes. However, more senior
Republicans were able to delay the term limits provision so that the
clock would not start until the 105th Congress.
Aside
from the institutional impediments to changing Senate rules, Senate
Republicans moved more slowly for other reasons. Senate
Republicans included a more sizeable proportion of moderates than
existed in the House Republican Conference. Moderates
generally opposed being held to strict standards of party loyalty as a
test for committee chair positions. Plus a
larger proportion of Republican senators (as opposed to Republican House
members) held committee chairmanships. And
many of them, even conservatives, were reluctant to put seniority
privileges at risk. Moreover, having been
in the majority for six years in the 1980s, Senate Republicans did not
share the same frustrations as their House counterparts and were less
motivated to change the internal workings of the chamber.2 In
the end, little occurred that gave the Senate Republican leadership
additional tools for limiting the behavior of its members. Thus,
individualism persisted, albeit in a more party-oriented political
context.
It
was not until 2002 that Senate Republicans revisited the question of
term limits and the selection of committee chairs. Because
the Republicans became the minority party following Senator Jeffords'
departure from the Conference early in the 107th Congress, senators
wondered whether service as the ranking minority member on a committee
should count toward the six-year term limit for the top committee member
or whether it should be counted separately, a point on which the 1995
provision was unclear. The Senate
Republican Conference considered several proposals, even including one
to abandon chair term limits. In the end,
Senator Robert Bennett's (Utah) compromise prevailed. It
provided that Republican senators could serve up to twelve years in a
top committee position (six as chair and six as ranking minority
member), but they would have to give up the top slot once having served
six years as chair.3 When Republicans won back the Senate in
the 2002 election, it meant that the term limits provision on Republican
committee leaders would be implemented for the first time at the start
of the 109th Congress. Unlike the House,
where seniority was violated in the initial selection of chairs in the
104th Congress and where term limits had resulted in replacements in the
107th, Senate Republicans had postponed the implementation of chair term
limits for a decade, effectively leaving seniority and the power of
committee chairs unaffected. But it posed
the possibility that seniority could be displaced as a means for
choosing committee chairs when replacements were selected.
The Selection of Bill Frist as Majority
Leader
If
the implementation of committee chair term limits was one ingredient
that created the potential to move the Senate beyond incremental change
in a period of growing partisanship, the selection of Bill Frist to be
majority leader may have been an even more important one. Prior
to Frist's replacing Trent Lott as Senate Republican leader in December
2002, the three preceding Republican leaders, Baker, Dole, and Lott, had
all spent their Senate careers during the period when individualism
thrived in the Senate. All had lengthy congressional careers prior to
becoming majority leader and were well socialized in the norms of the
institution. They had the opportunity to
serve as members of the Senate majority in the 1980s and had built
successful political careers in that context. By
contrast, not only was the Senate seat Frist's first exposure to
political office, but he also entered the Senate, following the 1994
election, as a political outsider. And his
socialization to Congress came in witnessing the Republican revolution
of the 104th Congress and as part of the frustrated junior Republican
Senate contingent urging the party Conference to make broader changes. So, unlike his predecessors, Frist did not
have a stake in the Senate of the individualism period. Instead
he was a product of the forces of party polarization.
The
process of Frist's selection as Republican leader also separates him
from those who previously held the position. And
it goes beyond the fact that he replaced a leader who was effectively
forced to resign. While Baker, Dole, and
Lott were clearly leadership candidates who developed support for the
position internally, Frist was an external candidate. He
was the choice of the Bush administration first and of Republican
senators second.4 In fact, Frist appears an unlikely choice
for the position. Aside from chairing the
Republican Senatorial Campaign Committee during the 107th Congress, a
position not usually used as a steppingstone to party leadership in the
Senate, Frist had given little indication of prior interest in the
internal workings of the Senate.5 His prime assignments were
on policy committees, like Foreign Relations and Health, Education,
Labor & Pensions, not on those used in the pursuit of institutional
power. Moreover, he was not committed to a
long Senate career, having indicated that he would not serve more than
two terms.
Thus,
the Senate found itself with a majority leader who did not possess
long-term experience and commitment to the Senate as an institution, who
was policy oriented, who was seen as being close to the Bush
administration, and whose longer term political career would not be in
the Senate. If one were looking for someone
willing to sacrifice concerns with institutional maintenance for the
achievement of presidential policy goals, then one could not find a more
appropriate choice than Bill Frist.
This
distinction became clear in May 2004 when Frist decided to break Senate
tradition and campaign on behalf of John Thune, the Republican candidate
running against Tom Daschle, the Democratic Senate leader. Frist
signaled that he was willing to put opportunities for partisan gain
ahead of chamber harmony. It was a
departure from the relationship that had existed between Lott and
Daschle, as well as prior sets of Senate floor leaders, and instead was
akin to more prickly workings that have existed between Republican and
Democratic House leaders.
Republican Electoral Prospects
If
one reservation to pursuing a more partisan course in the operation of
the Senate was that it could come back to haunt them should the
Democrats win a majority of Senate seats, then the Republican success in
both the 2002 and 2004 Senate elections has allayed those concerns. Winning back control in 2002, especially
by making gains in a midterm election with Republican president, may
have given the party leaders some confidence that they might be able to
establish a longer term Senate majority, and the four seat net gain in
2004 clearly cemented that impression. Add
to that the fact that Democratic opportunities for making gains in 2006
elections are not promising. Republicans
only hold 15 of the 33 seats that are up in 2006, and few of their
incumbents seem endangered or represent states that Bush failed to carry
in 2004. It means that a comfortable
Republican Senate majority should persist at least through the remainder
of the Bush presidency. For Republican
Senate leaders this provides an added incentive to remove other
obstacles that might block their policy agenda.
Can Republican Leadership Revolutionize
the Senate?
In
the aftermath of the 1994 election, the Republican revolution in the
House was successful in cementing "conditional party government" as the
operating premise for that institution. The
concept of conditional party government centers around strong governing
parties. Its prerequisites are that the
parties be highly polarized and that they each have a cohesive
membership. When these conditions exist,
members of the two parties do not overlap on most issues, and
cross-partisan or bipartisan coalitions do not form to pass legislation. Instead members give their party leaders
additional powers that can be used to hold their membership in line with
party policy positions. That is precisely
what happened following the 1994 election in the House. Among
other things, Republicans gave Speaker Gingrich sufficient powers so
that his leadership team could keep even reluctant members supporting
party positions. This allowed the party
leadership to pursue and to pass a party agenda that was at the position
of the median party member rather than at the median House member.6
With increased control of important rewards (selection of committee
chairs, assignment of members to committees, the scheduling of
legislation, ability to direct campaign contributions, etc.), House
Republican leaders had resources to influence member behavior that were
not available to their Senate counterparts.
In
addition, House Republican leaders built on the techniques that
Democratic leaders had developed over the preceding two decades to
minimize the opportunities that the minority party, no matter how
united, could obstruct the passage of legislation in the House. Prime among these vehicles was the creative
use of the Rules Committee to provide protective restrictions on the
terms of floor consideration for important bills and the willingness of
the party members to support the leadership when it advanced restrictive
rules.
Although
the parties in the Senate became more polarized and more cohesive over
the decade following the Republican take over in 1994, Senate Republican
leaders lacked the tools to make conditional party government operate in
a fully viable fashion. Without control
over committee chair positions and committee assignments and having to
resort to unanimous consent agreements or the ability to get the 60
votes needed for cloture, they could not ensure the passage of items on
the party's legislative agenda and often had to retreat from median
party positions.7
Seemingly,
the implementation of the Senate Republican term limits provisions on
committee chairs at the start of the 109th Congress, the threat to Arlen
Specter's assuming the Judiciary Committee chairmanship, and the power
granted to Majority Leader Frist to fill half the vacancies on "A"
committees give the party leadership control of the rewards and
sanctions that come with committee positions on a par with their House
counterparts. But one has to recognize
important contextual differences between what appear to be similar
powers. First, unlike the House where
seniority is frequently violated in the naming of committee chairs,
every Senate committee chair selected for the 109th Congress was in
keeping with seniority (as modified by the term limits provision), and
no senator in line for a chairmanship on the basis of seniority was
challenged by a more junior senator. Nevertheless,
what did occur could put Republican senators on notice that seniority
rights may not be sacrosanct in the future. Second,
committee assignments and chairmanships are simply not as important to
senators as they are to House members. In a
large institution like the House, members differentiate themselves on
the basis of the committees on which they serve and whether they hold
committee or subcommittee chair positions. In
the smaller Senate, power comes from being a senator more than from the
committee positions one holds. So the
ability to give or withhold a committee chairmanship or a committee
assignment will have less sway on a member's loyalty to the leadership
in the Senate than it will in the House. Third,
if the leadership should deny a senator a chair position that would be
due on the basis of seniority, it could make that senator more
vulnerable to a Democratic challenger in the next election. The
implication is not the same in the House where so few seats are party
competitive.8
These
reservations aside, the additional discretionary control the Senate
Republican Conference and the majority leader have over the committee
assignments and the selection of committee chairs may prove more
important in sustaining party loyalty than one might think. The
study of congressional change over the past three decades suggests that
party leaders are often able to use what at first glance seem minor new
resources to leverage considerably greater institutional control. Certainly, the reaction following the 27-26
vote by which the Conference gave Frist committee appointment powers
indicates that moderate Republicans did not see the change as innocuous. As Olympia Snowe argued, "I think it's a
punitive measure, by any interpretation."9
Assuming
that the changes discussed above are sufficient to give the Senate
Republican leadership the resources necessary to minimize defections
from median party positions, the problem preventing a unified minority
party or even individual senators from blocking or delaying the passage
of legislation remains. Obviously, the use
of filibusters or filibuster threats is the major stumbling block for
the majority party leadership. As Sinclair has demonstrated, in recent
Congresses about half of major legislation has been subject to "some
sort of filibuster-related problem,"10 and the Senate is far
more likely than the House to be the place where major legislation fails. During the 108th Congress, Majority Leader
Frist suggested alternatives for minimizing
the effectiveness of filibusters, especially if used to block
confirmation of presidential nominations. The
Committee on Rules and Administration had a hearing and considered a
Republican proposal to allow successive cloture motions with a declining
vote requirement so that by the fourth vote only a simple majority would
be needed. Under existing Senate rules,
however, that change would be subject to a filibuster with 67 votes
needed to break it. In addition, several
Republican senators were concerned about what might happen in times
when the Democrats were in the majority and the shoe was on the other
foot. As an alternative Frist also
suggested that the use of filibusters to block judicial nominees was
unconstitutional and threatened simply to ask for a ruling from the
chair, Vice President Cheney, to sustain that interpretation. Cheney's ruling would only require a majority
of the Senate to be upheld. Frist
threatened this "nuclear" option again at the start of the 109th
Congress, if Senate Democrats filibustered any Bush judicial nominee.
One
can speculate about the exact purposes of this strategy and whether
Frist will really pursue the "nuclear" option. Is
this just a threat to limit the propensity of Democrats to filibuster
Bush's most conservative judicial nominations or to ensure that other,
slightly less extreme, nominees are confirmed with ease? Is
the threat a sincere one on which Frist intends to act or is it just
being pursued as a means to keep part of the Republican electoral base
activated? Is it a first step in an effort
to de-legitimatize the filibuster more generally, not just as applied to
judicial nominees?
From
my perspective the costs, in terms of disruption of the Senate, that
employing the nuclear option would entail are far greater than any
benefit that would obtain from the ability of confirming a small number
of otherwise blocked, judicial nominees. The
value of doing so would have to be something greater to justify this
course of action. What a willingness to
bear the costs may indicate is a desire of the Republican leadership to
have the ability to move its party's agenda in the Senate as effectively
as House leaders can in the other body. To the degree Senate Republican leaders have
to employ resources to ensure the Senate approval of controversial
presidential nominees (their House counterparts are free of this
burden), they will have fewer resources to attract support needed to
invoke cloture on and pass substantive legislation. At
the present, when the leadership persuades a senator to support cloture
on a controversial judicial nominee, it earns that senator a credit with
which to resist later pleas to support party positions. Viewed
in this context, Majority Leader Frist may be willing to risk the
nuclear gambit if he cannot reduce the frequency of filibusters against
nominations by threatening that option. Otherwise,
he will consume too many leadership resources shepherding judicial
nominees, leaving him too few to enact much of the party's legislative
program.
Conclusions
In
sum, the Republican revolution following the 1994 election gave House
Republican leaders the tools to hold their members behind party
positions and to overcome efforts of the minority party to block the
passage of median party position on a range of legislation. After
a decade of evolutionary change during which the political parties in
the Senate have become more polarized and more cohesive, Senate
Republicans are engaged in a similar, if less publicized, revolution of
their own. It remains to be seen whether
they can achieve the same or similar results in an institution that has
placed such a high value on the prerogatives of individual members and
on protecting minority rights. Whether
Majority Leader Frist proceeds and is successful with a frontal attack
on the filibuster remains to be seen. The
experience of Newt Gingrich in leading the budget confrontation with
President Clinton should be a reminder to Senator Frist that, in the
aftermath of electoral victory, parties and their leaders often ignore
institutional limitations and end up paying a substantial cost.
Notes
1. Barbara Sinclair, "The New World of U.S.
Senators," in Lawrence C. Dodd and Bruce I. Oppenheimer, eds., Congress
Reconsidered, 8th edition
(Washington, DC: CQ Press, 2005), 1.
2. For a thorough discussion of the struggle
among Senate Republicans in the 104th Congress and a fuller listing of
the changes that were adopted see: C. Lawrence Evans and Walter J.
Oleszek, Congress Under Fire
(Boston: Houghton Mifflin, 1997), 152-158.
3. David Nather,
"GOP Debates Term Limits," CQ Weekly, June 22, 2002,1654; and David Nather,
"Senate GOP Agrees to 'Middle Ground' on Committee Term Limits," CQ
Weekly, June 29, 2002, 1732. The first part of 2001, prior to Jeffords'
switch was deemed not to count toward the six-year limit as chair.
4. Elisabeth
Bumiller, "With Signals and Maneuvers, Bush Orchestrates an Ouster," New
York Times, December 21,
2002, A1.
5. Oklahoma's
former Senator Don Nickles did serve as campaign committee chair prior
to being selected as the Republican Senate whip.
6. For a more
complete statement of the requirement of conditional party government,
see David W. Rohde, Parties and Leaders in the Postreform House (Chicago: University of Chicago Press, 1991),
chap. 2. The conditional aspect is that it
only applies to issues on which the parties are polarized and internally
cohesive.
7. Senate
Republican leaders were more successful in developing strategies for
stopping the Democrats from getting votes on amendments and legislative
issues that were on the minority party agenda (something Republican
House leaders could achieve through restrictive rules and stricter
germaneness provisions that govern the House floor). For
a discussion of the strategies of Republican Senate leaders see
Sinclair, "The New World of U.S. Senators."
8. However,
the Senate is becoming more like the House in one important way that
makes the task of the Republican leaders easier. Despite
concerns about moderate and maverick Republican senators, their numbers
are declining. Only six Republican senators
had party unity scores below 87.5 in 2004, and those six rarely behaved
as a cohesive block. Plus with 55
Republican senators in the 109th Congress, the leadership has more
leeway. It can afford more defections,
even though it may now have more capacity to limit them.
9. Alan K.
Ota, "Senate GOP Gives Its Leader a Powerful New Tool," CQ Weekly, November 20, 2004, 2733.
10. Sinclair,
"The New World of U.S. Senators," 10.
Bruce I. Oppenheimer (Ph.D., University of Wisconsin) is Professor
of Political Science at Vanderbilt University. His research and
teaching interests focus on Congress, congressional elections, and
political parties. In recent years much of his scholarly work has
focused on the U.S. Senate and includes the books Sizing Up the
Senate: The Unequal Consequences of Equal Representation (University of Chicago Press, 1999),
co-authored with Frances Lee, and U.S. Senate Exceptionalism (Ohio State University Press, 2002) which he
edited. In addition, he is co-editor (with Lawrence Dodd) of Congress
Reconsidered 8th ed. (CQ
Press, 2005). Professor Oppenheimer's email address is bruce.oppenheimer@vanderbilt.edu.
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