Volume 19, Issue 4

The dramatic Democratic victories in the 2021 Georgia U.S. Senate runoffs handed Democrats their first majority since 2015 and, with this, unified Democratic control of Washington for the first time since 2011. While Democratic Leaders and President Joe Biden crafted their agenda, any hope of policy passage rested on complete unity in a 50–50 Senate and a narrow majority in the U.S. House. Against this backdrop, the 117th Senate is the most polarized since direct-election began in 1914 and, by popular accounts, the least deliberative in a generation. In this article, we examine the implications of partisan polarization for policymaking in the U.S. Senate throughout the direct-election era. First, we show that greater polarization coincides with more partisan Senate election outcomes, congruent with recent trends in the House. Today, over 90% of Senators represent states carried by their party’s presidential nominee. Secondly, we show that polarization coincides with higher levels of observable obstruction, conflict, partisan unity, and narrower majorities. Lastly, we show that this polarization coincides with lower levels of deliberation in the form of consideration of floor amendments and committee meetings. Taken together, we paint a picture of a polarized Senate that is more partisan, more obstructionist, and less deliberative.

The case for reform of the filibuster practice in the Senate is much stronger now than a few decades ago. The emergence of conservative populism and radical Republican strategies in the Senate has created more serious consequences for the Senate’s traditional rules and practices. This essay draws a clear connection between conservative populism, the strategies of Senate Republicans, and legislative gridlock in the Senate. It concludes with a review of the arguments of Senators Joe Manchin and Kyrsten Sinema against reform and argues that they fail to account for how conservative populism has so thoroughly changed their institution.

Drawing on part of the argument from my recent book, The Senate: From White Supremacy to Government Gridlock (University of Virginia Press, 2021), I critique what I call “Senate exceptionalism:” the notion that the Senate is the framers’ particularly special or remarkable creation. I do so by contrasting the historical and constitutional distortions that support this institutional conceit with the realities of the founding and American political development. After reviewing the parallels between the ideas and tenets of American and Senate exceptionalism, I introduce four arguments from the book that undermine the basis of the Senate’s exceptionalism and in particular draw critical attention to the constitutional mythology surrounding and supporting the filibuster in the form of Senate Rule XXII and its three-fifths supermajority threshold for ending debate on many matters before the Senate.

Since its early uses in the early 1980s, the budget reconciliation process has played an important role in how the U.S. Congress legislates. Because the procedures protect certain legislation from a filibuster in the Senate, the reconciliation rules both shape, and are shaped by, the upper chamber in significant ways. After providing a brief overview of the process, I discuss first how partisanship in the Senate has affected the use of the reconciliation procedures. Next, I describe two sets of consequences of the contemporary reconciliation process, on negotiation and on policy design. I conclude with some observations about the relationship of reconciliation to the prospects for broader procedural change in the Senate.

Three times in the last decade Senate majorities have re-interpreted the rules of the Senate to limit the ability of Senate minorities to obstruct presidential nominees. Each of these invocations of the so called nuclear option have either reduced the threshold of votes needed to invoke cloture on a nominee or shortened the amount of post-cloture debate on nominees. In the current Senate, cloture can be invoked on nominees with a simple majority vote and most nominees are subject to only two hours of post-cloture debate. Despite these re-interpretations of the Senate’s rules, presidents are still struggling to secure confirmation for many of their nominees. As of this writing, fewer than 40% of President Biden’s nominations have secured confirmation, and more than 140 who have cleared committee are awaiting floor action in the Senate. We explore the factors that are inhibiting the confirmation process and discuss potential changes in the process that could expedite the confirmation of executive nominations.

The United States Senate is marching, Senate style, toward majority rule. Chamber rules have long required super, rather than simple, majorities to end debate on major and minor matters alike. But occasionally over its history – and several times over the past decade – the Senate has pared back procedural protections afforded to senators, making it easier for cohesive majorities to secure their policy goals. Both parties have pursued such changes – sometimes imposed by simple majority, other times by a bipartisan coalition. Why has the pace of change accelerated, and with what consequences for the Senate? In this article, I connect rising partisanship and electoral competition to the weakening of partisan commitments to Senate supermajority rule. No one can predict with any certainty whether the Senate will yet abolish the so-called “legislative filibuster.” But pressures continue to mount towards that end.

In today’s hyper-partisan environment, scholars and commentators contend that the filibuster poses a nearly insuperable obstacle to a Senate majority party’s agenda, limiting Congress’s output to non-controversial measures. Drawing on data about congressional majority party agenda priorities from 1985 to 2020 we identify when and how majority party legislative efforts fell short of success and take stock of the degree to which the filibuster was the primary culprit. Not surprisingly, our data confirm that the filibuster is a significant problem for majority party agendas. But an even more common cause of failure is the majority party’s inability to agree among themselves. Despite increased voting cohesion generally, parties in the polarized era still routinely struggle to bridge their own internal divides.

On the campaign trail and at his inauguration, Joe Biden pledged, above all else, to be a uniter to restore the soul of America. At the end of his first year in office, many campaign promises have been met, but unity has not been one. Far from transcending partisanship as promised, Biden has embraced the levers of presidential discretion and power inherent within the modern executive office to advance partisan objectives. He is not just a victim of polarization, but actively contributes to it. This is not unexpected. Rather it is the culmination of a decades-long reorientation within both major parties: the rise of an executive-centered party-system, with Democrats and Republicans alike relying on presidents and presidential candidates to pronounce party doctrine, raise campaign funds, campaign on behalf of their partisan brethren, mobilize grass roots support, and advance party programs. Like Barack Obama and Donald Trump before him, Biden has aggressively used executive power to cut the Gordian knot of partisan gridlock in Congress. Even pandemic politics is not immune to presidential partisanship; in fact, it has accentuated the United States’ presidency-centered democracy, which weakens the public resolve to confront and solve national problems.