As the November election fast approaches, the 116th Congress is coming to an end. Big changes may soon occur on Capitol Hill including a potential Democratic takeover of the Senate. Lawmakers on both sides of the aisle are now speculating about ways to strengthen the upper chamber.   

Democrats Considering Ending the Legislative Filibuster 

Prominent Democrats, led by former President Barack Obama, have called for the elimination of the legislative filibuster. Senator Chuck Schumer (D-NY) has said that “nothing is off the table” and promised to “do what it takes” to enact a potential Biden Administration’s agenda. 

Of course, the most important perspective on ending the legislative filibuster may be Vice President Joe Biden, who served for 36 years in the Senate. Biden was opposed to the change during the Democratic primary but recently stated his openness to ending the filibuster if it was required to implement his agenda. The former Vice President said it would “depend on how obstreperous they become.” 

One can understand how some Democrats may see a short term advantage in ending the legislative filibuster. But everyone concerned with the future of American governance should ponder whether the United States would be better off if Congress was allowed to enact sweeping policy changes with even less bipartisan consensus, and partisans should think about future Congress may use that power when different parties are in charge. For example, Senator Harry Reid’s decision to deploy the “nuclear option” for certain Presidential nominees established a president for Senator McConnell to extend to Supreme Court nominees that Democrats came to regret, particularly now after Justice Ginsberg’s passing.  

Some senior Democrats who are concerned about the institution’s role within the Legislative Branch may recognize the importance of maintaining the filibuster. This week, Senator Dianne Feinstein (D-CA) said that she was opposed to eliminating the filibuster: “I don’t believe in doing that. I think the filibuster serves a purpose. It is not often used, it’s often less used now than when I first came, and I think it’s part of the Senate that differentiates itself,” Feinstein said.

Republicans Lawmakers Floating Unrealistic Reforms 

Republicans also have ideas for institutional reforms. Writing in the Wall Street Journal this month, Nebraska Senator Ben Sasse proposed a list of reforms, including term limits, replacing standing committees with two-year committees, removing cameras from oversight hearings to prevent grandstanding, banning campaign fundraising while the legislative body is in session, and repealing the 17th Amendment (which established the direct election of Senators, taking that power from state legislatures). 

Some of Senator Sasse’s ideas are common sense, in my opinion as a former Senate staffer, such as sunsetting everything (from laws to government programs) to require Congress to step up and fulfill its authorizing responsibility.  Too many government programs operate essentially on autopilot with little direction from lawmakers

On the issue of ending public hearings, Senator Sasse points to the Select Committee on Intelligence as a committee where most hearings are held in secret and “Republicans and Democrats cooperate on some of America’s most complicated and urgent problems.” And while this argument has merit, it is also worth considering what value would be lost in terms of public transparency if all Congressional hearings held behind closed doors without cameras. For example, Committee hearings are the only venue where executive branch officials can be forced to answer questions, and the transparency of cameras allows the American people to see firsthand how they respond.

Senator Sasse even proposed having the Senators live together in dorms while they are in Washington, since “it’s hard to demonize people you spend time with every day.” While his envisioned reforms are difficult to imagine coming to pass, they highlight the appetite among some Republicans for big changes in Senate rules and practices.

The Bipartisan Model for Incremental Reform–The House Modernization Committee

For Democratic and Republican Senators interested in strengthening the Upper Chamber and looking for more practical reforms that have a chance of spurring real change, the House Select Committee on the Modernization of Congress is a promising model. 

Formed in January 2019, the Select Committee’s mission is to “investigate, study, make findings, hold public hearings, and develop recommendations to make Congress more effective, efficient, and transparent on behalf of the American people.” Led by Chairman Derek Kilmer (D-WA) and Vice Chair Tom Graves (R-GA), the Select Committee has operated on a purely bipartisan basis. 

The Select Committee has passed 97 recommendations, which have largely been approved unanimously by the Committee. Many of the Committee’s recommendations are aimed to better equip lawmakers to do their jobs more effectively and to encourage bipartisan collaboration. The following are examples of these kinds of recommendations: 

• “Overhaul the Onboarding Process and Provide Continuing Education for Members” (including a bipartisan leadership academy, cybersecurity training, and allowing new members to hire a transition staffer). 
• “Modernize and Revitalize House Technology” (including reestablishing the Office of Technology Assessment and reforming House Information Resources to improve access to IT)
• “Encouraging Civility and Bipartisanship in Congress” (including creating a “bipartisan, member-only space in the Capitol”, establishing bipartisan retreats, and encouraging collaboration among staff.”)

The Committee also issued recommendations to improve Congress’s acquisitions to save taxpayer dollars, to improve continuity of operations planning (which has proved important during the pandemic), and improve transparency. On the latter, the Committee’s bipartisan recommendations include establishing “One-click access to a list of agencies and programs that have expired and need Congressional attention.”

In March, the House passed H. Res 756, which included 29 recommendations to “make Congress more effective, efficient, and transparent,” including reforms to House human resources, new member orientation, technology, accessibility, and transparency.  The Select Committee is due to issue a final report on its recommendations next month.   

Last week, the Committee issued its final set of recommendations and voted to approve the forthcoming report. The latest recommendations include modernizing scheduling, fiscal and budget process reforms, and encouraging bipartisan oversight. The following are a few highlights: 

• Creating “a congressional Community Focused Grant Program that harnesses the authority of Congress under Article One of the Constitution to appropriate federal dollars.”
• Encouraging bipartisan oversight, retreats, trainings and policymaking at the committee level,
• Establishing a “more predictable, modern work calendar” since “Members should spend less time traveling and more time legislating.”
• Requiring an “annual Fiscal State of the Nation, to better inform our policy making and ensure taxpayers know how their dollars are being spent” and a “biennial budget resolution.”

Some of these recommendations are likely to face significant opposition. Many fiscal conservatives will balk at the idea of the new approach to earmarks through Congressionally-focused grants. Advocates of greater government spending will likely oppose an annual Fiscal State of the Nation. But many of the reforms to strengthen the House as institution has a good chance of being implemented. 

The Select Committee’s modernization work may not fundamentally change Congress (at least not in the way that Senator Schumer and Senator Sasse may be envisioning). But it’s an important start. Moreover, the bipartisan nature of the Committee’s work, including the leadership of Chair Kilmer and Vice Chair Graves, is surely a highlight of the 117th Congress and a model for other lawmakers.  

The Opportunity for the Senate

Rather than potentially ending the legislative filibuster, Senators on both sides of the aisle should study the House Modernization Committee’s and consider whether the Upper Chamber could use a similar Select Committee in the next Congress to look at how the body could better perform its work. 

Many of the House Select Committee’s recommendations (such as improving information technology access and training) would be directly applicable to the Senate. A similar bipartisan process of inquiry would surely reveal other useful ways to improve the Upper Chamber. 

Looking ahead to January, Members of Congress who will be back for the 117th should be considering ways to make the Legislative Branch work better and to restore American confidence in government. The House Modernization Committee’s leadership identifying and recommending bipartisan institutional reforms is a model to follow.