Why Can’t the Senate Pass Popular Bills?

This week’s massive omnibus bill includes one of the most important election bills in a generation: A Dispatch Explainer.

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Senate Majority Leader Charles Schumer talks to reporters Tuesday about the bipartisan federal omnibus spending legislation. (Photo by Chip Somodevilla/Getty Images)

By most measures, the bill Congress is considering to reform the Electoral Count Act (ECA) in the wake of 2021’s Capitol insurrection should have skated through a Senate vote by now on its way to becoming law.

The Electoral Count Reform and Presidential Transition Improvement Act is popular: The Senate version has 37 co-sponsors from both parties. It’s ready for a floor vote: The Senate Rules Committee voted 14-1 in October to advance the bill out of committee after the House passed it in September. It’s bipartisan: For several months it’s had the filibuster-beating support of more than 10 Senate Republicans, plus the White House and Senate leaders Mitch McConnell and Chuck Schumer. And the bill is salient: Many lawmakers believe that reform is necessary in the wake of former president Donald Trump’s actions to steal the 2020 presidential election. The bill, among other changes, clarifies that the vice president’s role in certifying results is a mere formality. (Find more of The Dispatch’s coverage of the bill here, here, and here.)

But instead of passing it before now, lawmakers waited to include the ECA reform in the $1.7 trillion omnibus spending bill it’s trying to pass before Christmas. 

It may seem counterintuitive to those who grew up on Schoolhouse Rock or Mr. Smith Goes to Washington that popular bills languish in limbo for months only to make it to the Senate floor as part of massive must-pass packages.

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  1. Sgruenwald730

    Maybe there’s a political party who’s not really interested in governance whose voters want to burn it all down. If that mysterious party wanted to vote on the ECA prior to the lame duck session they would have but that mysterious party would have probably filibustered it which is probably the reason it’s in a budget bill. Maybe the Dispatch will continue to talk to those members of that mysterious party for talking points.

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    Cthocas

    While an excellent explainer of how bills can stall out in theory, this isn't really about the ECA in the particular—hence the subhead is misleading.

    We don't know the reality of Schumer's strategy. Both Romney and Sasse seem incensed this never received a floor vote. Given the Respect for Marriage Act did (and passed easily), I can't help but speculate there was some cynical politicking from Schumer with the ECA.

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  3. Petera

    The constitutional process already makes it reasonably difficult to pass a law. There are three hurdles already: House, Senate, president's signature. That's plenty of checks and balances. There really is no need for the Senate to make things even more difficult with incredibly cumbersome rules, which are their own invention. There is no constitutional mandate for cumbersome rules - the Constitution just says each house of Congress can make their own.

    I agree there should be plenty of opportunity to deliberate in both houses of Congress. That's what committees are for. There is no need for the main floor procedures and voting to be as cumbersome as they are now. Deliberation is good. Giving one or a few Senators effective veto power over all legislation is not helpful - and not what the Founders envisioned.

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    1. MathewA

      I'm open for some reform. I do want to keep the filibuster though. Big changes should require bi-partisan support.

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      1. Petera

        Filibuster... I could take it or leave it. Probably leave it. It's rare that Senate, House, and President are same party, so those three hurdles require bipartisan compromise most of the time. Filibuster tends to push us from deliberative (good) into dysfunction ( bad).

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      2. Nordic_man

        Why? Without the fillibuster all you have to do is win majority support in 2 years and undo said big changes? Or are you worried that building a political majority would be too hard so you have to weight the system in your favor?

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        1. MathewA

          Because it's not good for the country to have big changes being done and undone. Stability is important, people should be able to plan for their lives.

          To give an easy example, what if gay marriage was done and undone every 2 years. Think how destabilizing that would be for their lives.

          Or what about environmental matters. Projects approved. Nope it's banned, nope it's approved again. That just doesn't work.

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          1. Nordic_man

            Once again, does the UK have this problem? You are operating on theory. I am operating in the real world here

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          Kmregan7

          If the filibuster was so important, the Founders would have created it and put it into the Constitution. Instead, they set up the system we have without the filibuster and the rest of the Senate rules they created.

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          1. MathewA

            The founders also envisioned a federal government about 1% the size of what we have now.

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  4. Retired Prosecutor

    There is a desperate need to return to regular order and the committee system. This is not how the Founders envisioned Congress to legislate.

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      Logical

      RO has been fiction for a long time. Will not happen until the culture wars are settled (which may be never).

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    Peytonzeigler

    very helpful, thanks.

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    Jen

    Simple. They stick popular and important stuff in these big spending bills to force members to have to vote for a lot of unpopular stuff too.

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  7. Brook

    Thanks, Harvest. Yet again, TD has educated a clueless reader. Well done.

    I agree with the earlier comments on the need for full debate and consideration, especially the proposition that enacting bad laws is worse than failing to pass even a good bill. (And, Amen! to the comment on the federal government’s nondiscretionary liabilities.) I do wish, however, there were some way to tweak the rules to provide more efficiency without sacrificing deliberative consideration. In the final analysis, though, this discussion highlights the need to elect grown-up, principled Senators. How’s that looking?

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      Wilhelm

      I get a lot of education on everything from governmental sausage-making to geo-politics at The Dispatch. There are a talented bunch of reporters here. But I think Harvest leads the pack in nuts-and-bolts 'splainers that I need.

      Once again, thanks, Harvest!

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    Loganrjudy

    Good piece!

    One question - when I was an intern at the Indiana statehouse, the Speaker of the House could strike down a proposed amendment if it was not germane to the bill. How hard would it be to implement a similar rule in Congress?

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    1. Avatar photocircle-angle-nib
      Harvest Prude vertical-nib Author

      The House has this as a rule--but it's a good question about what it would take for the Senate to adopt similar. https://rules.house.gov/resources/boot-camp/basic-training-germaneness-rule

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      1. Avatar photocircle-angle-nib
        Harvest Prude vertical-nib Author

        More here: https://archives-democrats-rules.house.gov/archives/germane_over.htm#:~:text=TO%20TEMPORARY%20PROVISION-,1.,agency%20for%20one%20fiscal%20year.

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    CynthiaW

    That was very informative.

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  10. DTruitt

    What radicals and activists believe to be a bug of our Federal government is actually a feature. Unless an immediate emergency threatens the republic this very hour, then a deliberative and yes slow and cumbersome process is needed to throttle the radicals and activists who would always rush us into bad legislation.

    The worst thing any government can do is to not to fail to enact new laws ... the worst thing any government can do is to enact bad laws.

    So for all those whiners who bewail the so-called "dysfunction" and "divided government", go pack sand. The republic is supposed to be deliberative and slow in acting on nearly all matters - the slower and more deliberative the better. Being evenly divided - exactly as are the voters who elect our government - means that our government must function exactly as the Founders intended in our Constitution ... via a process of checks and balances, and limited powers, so that no one faction can effectively launch a coup on our government and force things down the People's throats that do them no good. That includes both "popular" legislation, and unpopular legislation.

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      Derekdouglas

      Yet unfortunately every year we get treated to the "must pass" Omnibus spending bill that allocates trillions of $ with no debate, and very little understanding of what's in it.

      Omnibus is a "bad law" and truly spits on deliberation.

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    2. Leonidas

      well said dtruitt, and i fully agree.

      but if i may draw attention to the fact that we do have an an emerging emergency that congress is likely to ignore until it’s too late: the federal government is way too big and we have $70 trillion in unfunded, non discretionary liabilities.

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      1. CB76

        Well, as Mr. Truitt points out, we have a divided government that constantly changes hands with the narrowest of margins, so I wouldn't expect to see that government do anything more about your particular hobby horse than I would expect to see them do about climate change, border control, energy policy, or anything else that anybody on one side of the aisle or the other deems urgent. Gridlock works both ways. Neither side is ever going to get anything it wants because of it.

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    3. Nordic_man

      Funny. Plenty of other democracies operate just as your “scary scenario” describes. I would hardly call Britain an authoritarian hellscape

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      1. MathewA

        "I would hardly call Britain an authoritarian hellscape"

        Maybe not. But they have allowed civil liberties to be trampled in a manner that I hope we never see over here.

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        1. Nordic_man

          I would hardly call those civil liberties trampled. They just made choices you don’t like. If you lived in the UK you could mount a campaign to change hearts, minds, and eventually votes. You know, democracy. If you try and fail to do that, sucks to be you but clearly you would need to try again with a better message, or messenger. Too many people think they can stand alone on a soapbox proclaim they are correct, and then build the system such that their “correct” outcome always has a fighting chance against the “popular” outcome. Proclaiming that any other system is unfair. When in reality they should just go practice politics instead of weighting the system and being a lazy ass

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          1. MathewA

            That's why we live in a republic not a democracy. We want to limit government and protect liberty even when that's what the majority want. So something like freedom of speech or religion can't be trampled if the majority wants.

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      2. DTruitt

        The United States of America rebelled against the King and United Kingdom, and just about everything in our Constitution was an attempt to correct the wrongs of government in the UK.

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        1. Petera

          We rebelled against the UK government of the 1770s. Things there have changed somewhat in the intervening 250 years.

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      3. Bradgreenwald

        I would. They banned [edit: carrying] screwdrivers!!!

        Edit: "without good cause" which might make it worse...

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        1. Nordic_man

          Well. Clearly they did it with the consent of the governed, and given how easily their laws can change given what is close to a unicameral parliament they continue to hold the consent of the governed. That being said you could still (if you were a UK citizen) use your free speech to go build a coalition to change this, and if that failed it would be on you for failing to build a governing majority on the issue. Hardly a hellscape

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          1. Bradgreenwald

            I guess where we disagree is that I think that authoritarianism backed by an occasional popular vote is still undesirable. Maybe it is semantics. "UK is a majoritarian hellscape" I could agree on as a compromise.

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    4. Krbrady1919

      Couldn't agree more, DTruitt.

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