Some political analysts are starting to think about the possibility of a Romney presidency and how he would govern, given that he is unlikely to have complete control of the Senate. Although it is possible that Republicans may get a majority – Democrats now control the Senate by a 53 to 47 margin, including two independents who vote to organise the Senate with the Democrats – there is no possibility of them getting the 60-seat margin necessary to actually have control.
Although the Senate notionally operates by majority rule, in recent years Republicans have perfected the use of parliamentary procedures that effectively require 60 votes – the threshold necessary to break a filibuster – for virtually every bill or nomination. (Under the Constitution, the Senate alone confirms nominations for senior political appointments and federal judges.)
Obviously, should Republicans regain control of the Senate with fewer than 60 seats, Democrats would then use those same procedures to frustrate the Republicans. Thus a President Romney would face exactly the same problems in advancing his agenda that Barack Obama has faced.
There are two ways Mr Romney could respond. First is through an obscure congressional procedure known as “reconciliation”. It applies only to measures affecting taxes and spending, but has the virtue of requiring a majority vote for passage in the Senate. By law, reconciliation measures cannot be filibustered.
The big problem with reconciliation is that both the House and Senate must agree to a budget resolution embodying reconciliation instructions – basically, congressional committees are ordered to report legislation incorporating those instructions. Although Congress is, theoretically, required to enact a budget resolution annually, with or without reconciliation, it has not done so since 2010.
Some American liberals have long urged Mr Obama to “embrace the most expansive reading of reconciliation”, as Noam Scheiber, senior editor of The New Republic magazine, recently put it. In other words, push the limit of what might fall within the definition of reconciliation to break the Senate filibuster.
This idea is impractical at the present time given the necessity of House and Senate agreement on a budget resolution containing reconciliation instructions, which is very unlikely with Republicans controlling the House of Representatives. Moreover, expanding the definition of reconciliation now might open the door for Mr Romney to use it later for his purposes.
The other option for dealing with the problem of routine filibusters is something Republicans put forward during the George W. Bush administration, when Democratic filibusters frustrated his agenda. That is what is called the “constitutional option”, which involves changing Senate rules by majority vote to end the filibuster altogether. Although Republicans eventually dropped the idea, it could be revived if they regain control of the Senate and Democrats use Republican tactics to block Mr Romney’s agenda.