RSS FeedFilibuster Reformology, Part 5: The 60-Vote Option and Finale
This is the final post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII. In Part 3 and Part 4, I canvassed the 51-vote options, including the “nuclear option” and some of its variants.
Time to wrap this thing up. In this final post, I want to mention a couple of options for reforming the filibuster which could be achieved with 60 votes in the Senate. Not much here to discuss, really, but these 60-vote options deserve mention as potential routes for reform. They could well end up serving as the mechanism for a compromise—especially if under pressure of a credible nuclear threat—such as the one reached in 1975 (see previous post), when the cloture requirement was lowered to 3/5 (from 2/3, except for cloture on amendments to the rules, which still requires 2/3).
Standing Orders and Rulemaking Statutes
Two mechanisms which could create exceptions to Rule XXII and effectively modify cloture requirements are worthy of note: rulemaking statutes and standing orders.
A rulemaking statute is a statute which, like any other statute, is passed by both houses, and which establishes special procedures for certain congressional business. Rulemaking statutes are typically used to “fast track” certain priority legislation which does not get sufficiently timely consideration under the “regular order.” The best example is the Congressional Budget Act of 1974, which created the budget reconciliation process and its famous exemption from the Senate’s 60-vote cloture rule.
To tell you about standing orders, here’s the Congressional Research Service:
Standing orders are regulations that have the force and effect of a rule, but are not contained in Standing Rules. Senate standing orders continue in force until they are altered or repealed, and may be adopted by simple resolution or by unanimous consent. Existing Senate standing orders govern a wide range of chamber business from the simple (the annual public reading of George Washington’s farewell address) to the complex (the creation and operation of the Senate Committees on Ethics and Intelligence). Senate standing orders are printed in a specific section of the Senate Manual.
So…standing orders are less formal than rules, but have the same effect as rules. What are the potential advantages of rulemaking statutes or standing orders for reforming cloture? CRS is glad we asked:
A potential advantage of using a rulemaking statute or standing order over some other parliamentary approaches to limiting consideration is that invoking cloture on these measures would require the votes of only three-fifths’ of those chosen and sworn (60 Senators if there are no vacancies), rather than the two-thirds present and voting (67, if all Senators vote) needed to get cloture on amendments to the Senate’s standing rules. The higher threshold for invoking cloture on rules changes is understood to apply only to direct amendments to the Senate’s Standing Rules, not to other measures having the effect of rules. In addition, in contrast to proposals to amend standing rules, consideration of a bill creating an expedited procedure statute or of a simple resolution creating a standing order would not require a day’s written notice.
CRS also notes that this approach would provide more flexibility than the nuclear option, which could only be launched under fairly specific parliamentary conditions. A rulemaking statute or standing order could also be targeted at, say, presidential nominations. The nuclear option, on the other hand, would probably be impossible to contain in such a targeted area—the precedent established for dodging Rule XXII cloture would inevitably be expanded into other contexts. At which point, the republic would be lost and all hell would break loose, as majority rule was visited upon the United States Senate.
Well, that does it for filibuster reformology. I’m planning to post some links to resources, including those I’ve relied on in this series, soon.
Filibuster Reformology, Part 4: 51-Vote Variants
This is the fourth post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII. In Part 3, I canvassed the 51-vote, “nuclear” option.
We need to tie up some loose nukes from last time before moving on to the 60-vote options for filibuster reform in the final post. Here’s a quick summary of the important steps in the 51-vote scenario, the launch sequence, as it were, for the nuclear option:
- Majority moves to break with Senate rule or precedent (e.g., by raising a point of order that the supermajority-cloture requirement is unconstitutional, or that further debate on a certain pending measure would be “dilatory”).
- Chair (VP or president pro tem) breaks with precedent and issues ruling to close debate on the pending measure.
- Minority moves to appeal the chair’s ruling; the question is presented on appeal to the whole Senate; debate begins on the appeal.
- Majority moves to table the appeal from the chair (a.k.a., moves the furniture). No debate; straight to up-or-down vote on tabling motion.
- Majority votes to table the appeal, upholding the ruling of the chair, ending the filibuster.
- Majority proceeds to up-or-down vote on pending measure, setting new precedent for breaking filibusters with a simple majority of senators.
Last time I mentioned that there could be many variants on this basic design, and that the key to all of them was in step 4, the motion to table the appeal from the chair, since that motion is not debatable and is decided by simple majority. Now I’ll say a little about a few of the variants.
The Constitutional Option
In my estimation, most of the distinctions between 51-vote variants do not make all that much difference. If you understand how moving the furniture (tabling the appeal from the chair) determines the result, you can see that it will work in pretty much any context where the necessary ingredients are operative. It really boils down to the intensity of the majority’s commitment to ending the filibuster era. But that’s strategy talk—you can read about that elsewhere.
So what about those distinctions? The phrase “constitutional option” is sometimes used interchangeably with “nuclear option,” and sometimes distinguished from it. I think the phrase “constitutional option” is best reserved for a scenario in which a majority of senators invokes the Constitution to claim its right to change the rules or depart from an established Senate precedent, or to claim that 60-vote cloture is unconstitutional.
Raising the constitutional question has some (relatively slight) consequences for procedure. According to the Congressional Research Service (pdf), “Under Senate precedents, the presiding officer may not rule on a constitutional point of order and instead must submit the point of order to the full Senate for a vote.” Thus the constitutional question could hop over step #2 in the launch sequence, straight into the filibuster-loving arms of the full Senate, before the furniture is laid out for the pivotal event, the tabling motion. The only thing to table at this stage would be the majority’s own motion. You want to table the other team’s motion, not your own.1
But even so, it would be relatively simple for the majority to rearrange the furniture in their favor. The Chair would only need to break two rules/precedents instead of one. The Chair could rule that the supermajority-cloture rule did not apply to consideration of constitutional points of order; or that in this narrow context, the Chair was permitted to decide the constitutional question. The minority could appeal either ruling, but the appeal could then be tabled by the majority. At that point, we’d be back to step #1, and the Chair could decide the actual constitutional question, followed by appeal, followed by tabling. Isn’t this fun?
The Opening Day Gambit
The “opening day” 51-vote variant is probably now the most actively discussed scenario for filibuster reform. Maybe that’s because there have been several such attempts in Senate history. Of course, they’ve all failed. Reformers came really close in 1975, tabling a point of order that had been raised against a proposal for majority cloture. But—as part of the deal that lowered the cloture requirement to 3/5—it reversed itself on reconsideration the following week and never voted on the proposal for majority cloture.
There is some dispute about whether this sequence of events somehow established a precedent in favor of majority cloture, even though the tabling vote that implicitly supported the majority cloture position was reversed. So…that’s an implicit precedent, explicitly reversed. Seems pretty weak to me. I suppose it creates room for argument, which creates some political cover for the majority. But ultimately, there is not, and could not be, any precedent in the world sanctified enough to protect the majority from accusations that it is betraying the republic.
Strategic considerations aside, the whole rationale behind the opening day gambit is a bit contrived. Its proponents argue that, on the first legislative day of a new term of Congress, the Standing Rules of the Senate have no effect, because they have not been adopted by the new majority. And so the new majority (or an old majority reconstituted) could adopt new Standing Rules, including reformed cloture rules.
The problem is, it has never been Senate practice to re-adopt its rules with every new term. Rather, the Senate has conducted itself as a continuous body, just as it was designed to do. And, though I don’t think it would help to point this out in any kind of formal setting, the whole reason they’re called “Standing Rules” is exactly this. They don’t expire at the end of the term. See also Rule V (“The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”).
In my estimation, there’s nothing constitutionally special about opening day in the Senate. But it’s as good as any other day, and I don’t doubt there are good strategic reasons for reformers to act on it—but that’s a matter for another blog.
- As usual, there are different ways this could shake out. E.g., the minority might be the one to raise the constitutional point of order. There are several important precedents from Senate history that I’ve decided not to get into. They’re related succinctly in this CRS report (pdf), though, and I’ll discuss their significance another time, if anyone asks about them in comments. [↩]
Filibuster Reformology, Part 3: The 51-Vote Option
This is the third post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII.
Now we’ll start looking at ways around Rule XXII‘s 67-vote cloture requirement for amendments to the rules. A second option (or family of options) for filibuster reform could be achieved with the support of a simple majority—51 votes if all senators are present—and the Senate’s presiding officer.1 This option has attained almost mythical status in the political culture. It is radical, obscure, and conspiratorial, and it goes by many names. Most notoriously, due to its power and potential for devastating fallout, it has been called the “nuclear option.”
There are many variants of the 51-vote option. Some of them vary by the grounds on which they are justified (i.e., whether on constitutional or other grounds); some vary by their timing (i.e., opening day or mid-session); and some vary by their scope (whether they affect only judicial nominations or all Senate business). See CRS (pdf) for more background. I’ll have a few things to say about some of these variants, and the distinctions they rest on, in the next post.
So there are many variants and many contexts in which they may develop. But there is something common to them all: a single, distinctive procedural device that shows up in every scenario and that, in every scenario, is the decisive step in breaking with established Senate practice. That device is called “tabling the appeal from the chair,” and once you’ve sufficiently rearranged your mental furniture to grasp its significance, you will understand the nuclear option and all its kin.
When a piece of legislative business is tabled, it is set aside, removed from present consideration—in a word, dead. If an appeal of a ruling by the chair is tabled, then the chair’s ruling stands.
So, let’s say the presiding officer (the chair) makes a ruling that somehow breaks with Senate rules or precedent—e.g., by declaring the 60-vote cloture requirement unconstitutional. Generally, breaking with precedent is not something the chair is supposed to do, and some senator is sure to appeal the ruling (“appeal from the chair”). To appeal a ruling in the Senate is to ask that the question be put to the whole Senate for a vote. And in the United States Senate, if there’s a vote, there’s nearly always debate; and if there’s debate, there’s more debate. And more debate, and more debate, until cloture. And so it might seem that we are stuck: even if the chair ruled to strike down the 60-vote cloture requirement, you’d still need 60 votes to uphold the ruling, right? Well, no, actually. Not necessarily. Enter the motion to table the appeal from the chair—or, as I call it, moving the furniture. If the majority tables the appeal, the appeal is dead, and the chair’s ruling stands. “But,” you’re probably thinking, “can’t the minority filibuster the tabling motion, too?” Good question. No! It can’t! And this is why the furniture motion is so important: it is (a) not debatable and (b) decided by simple majority.2 And so, with a favorable ruling from the presiding officer, a simple majority of senators can have its way, even when breaking with the rules, precedents, and traditions of the Senate.
Let’s walk through it again, with some contextual detail—though, remember, there are many variants that work in different contexts, so the detail here is just illustrative, not limiting.
Imagine that Democratic Majority Leader Harry Reid has brought the Kerry-Lieberman climate bill to the floor, debate has dragged on for a month, and Reid files for cloture (by submitting a petition signed by 16 senators). At the beginning of the second day after Reid files the petition, pursuant to Rule XXII, the Senate votes on the cloture motion. The motion gets just 53 votes, 7 shy of the 60 needed to close debate. Debate resumes, and Vice President Biden takes the chair to preside. Biden recognizes some Democratic senator, John Kerry perhaps, who raises a point of order, asking that further debate on the bill be ruled “dilatory,” and that the bill should proceed to a final vote in spite of the failure to invoke cloture. Biden agrees and rules that the Senate should proceed to a final vote on the bill. Minority Leader Mitch McConnell, shocked that the majority would even consider such skullduggery, objects. McConnell appeals the chair’s ruling to the whole Senate. The question is then put before the Senate, which begins debate on Biden’s ruling. Republicans (rightly) argue that the ruling departs from precedent. And what do Democrats do? Move the furniture. Some Democratic senator, Joe Lieberman perhaps (you never know!), moves to lay the appeal on the table. Without debate, the Senate votes on Lieberman’s motion, and the appeal is tabled by a vote of 53-47. Biden’s ruling stands, and the Senate proceeds without further debate to a vote on the Kerry-Lieberman bill, which passes, saving the planet.
So that’s one variant of the 51-vote option. What’s the key maneuver? Moving the furniture—tabling the appeal from the chair. What’s so special about that? You can’t debate the furniture. So put your chairs on the table and go home. The game’s over.
- The presiding officer could be the president pro tempore or the president of the Senate, a.k.a. the Vice President of the United States. It is likely that the Vice President would have to be on board for the whole scheme to work. [↩]
- See Rule XXII, paragraph 1 (motion to lay on the table “shall be decided without debate.”). [↩]
Filibuster Reformology, Part 2: The 67-Vote Option
This is the second post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate (it doesn’t) and categorized three options for reform: the 67-vote option, the 51-vote option, and the 60-vote option.
Before we dig into the mechanics, we need a general introduction to the seamy underworld of Senate procedure. The Congressional Research Service (pdf) will ferry us in:
The Senate is governed by the Constitution, the Standing Rules of the Senate, permanent Standing Orders of the Senate (adopted in prior Congresses), temporary Standing Orders of the Senate (adopted at the beginning of each Congress), and statutes. It is also governed by precedents, which are decisions made by the presiding officer of the Senate, or the body itself, concerning how its rules operate in practice. [...] Precedents have tremendous weight in deciding parliamentary questions in the Senate, and the presiding officer, whether the Vice President or a majority party Senator, is expected to be guided by these precedents when ruling on a pending question.
The Standing Rules of the Senate would seem to be the obvious place to start if a Senator desired to change that chamber’s procedures. If there is no substantial opposition, the Standing Rules of the Senate can be changed by a simple majority vote; there is no supermajority requirement for changing the rules. If, however, there is opposition to the proposed rules change and if opponents seek to prevent a final vote on the proposal by extended debate and amendment, known as a filibuster, a supermajority requirement does exist for invoking cloture, or ending debate, on a rules change. Senate Rule XXII, which sets out the process for invoking cloture, requires that two-thirds of those present and voting (67 if all Senators participate) vote to invoke cloture on a rules change.
Okay, let’s unpack that a little. First, note that the filibuster is a consequence of the fact that, in its default mode, the Senate allows unlimited debate (and amendment) on any measure. If you want to get to a vote, you have to ask for one. If no senator objects, you can have a vote right away. But if even a single senator objects, you get nothing. At that point you can either give up, try again later (with no guarantee of different outcome), or petition for cloture under Rule XXII.1
“Cloture,” for the uninitiated, means bringing debate to a close. In most circumstances, it is achieved (or “invoked” in the lingo) by an affirmative vote of 3/5 of senators “duly chosen and sworn,” or 60 votes. Invoking cloture on a given measure (a bill, amendment, or whatever) has the effect of breaking a filibuster (on that measure) and allows the Senate to proceed to an “up-or-down” vote, decided by simple majority.
Reforming the filibuster means changing the requirements for cloture; and that means amending, superseding, or sidestepping Rule XXII.
A motion to amend the Senate’s rules can be filibustered like anything else that isn’t specifically exempt from the normal rules (as is the budget reconciliation process). But cloture on a motion to amend the rules requires 2/3 of Senators “present and voting,” or 67 votes.
So, under the normal rules and precedents of the Senate as they are currently understood, it would take 67 votes to change the cloture rule. That’s pathway number one to reform—the most straightforward of the three: the “Rule-22 Option.” Get 67 votes in the U.S. Senate, and you can rewrite the rules.
Obviously that’s a tall order. Next we’ll look at reform options with lower thresholds for votes, but much higher thresholds for intrigue. Head for the shelter, everyone. We’re going nuclear.
Filibuster Reformology, Part 1: The Underview
This is the first installment of a 5-part series I’ll be posting this week on the procedural mechanics of filibuster reform.
A lot of good stuff has been written about filibuster reform over this past year, by people who really know what they’re talking about. Notably, political scientists Greg Koger and Jonathan Bernstein each have an excellent series of blog posts on the subject. That’s what you want to read for the history, theory, strategy, and politics of the filibuster and for evaluation of reform proposals. In short, go there for all the important and interesting stuff.
But I’m also semi-fascinated with the dry weeds of parliamentary procedure that constrain the options for reform. So I’ve set out to distill, with help from the Congressional Research Service (CRS), what are in my view the key procedural mechanics of Senate self-governance. My primary objective in this series is to chart out the available options, with a little gloss here and there, though by no means do I intend to exhaustively classify all the permutations of those options.
Cutting to the chase, there are in my estimation three broad procedural options for ending (or mending) the filibuster: (A) the 67-vote option, (B) the 51-vote option, and (C) the 60-vote option. The 67-vote option is a straightforward amendment of the Senate Rules, in accordance with all the strictures of the existing rules and conventions. The 51-vote option is a trickier, more radical, and more contentious route often referred to as the “nuclear option” or “constitutional option.” And lastly, the 60-vote option is one involving any number of less dramatic maneuvers which would effect correspondingly less dramatic change.
I’ll discuss each of these options over the next three posts. But for the remainder of this one, let’s get the constitutional “underview.”
The Rules of Proceedings clause does not require that the Senate exercise majority rule, but it does preserve the right of the majority to determine the rules.
Article I, section 5 gives each chamber of Congress exclusive control over its own procedural rules: “Each House may determine the rules of its proceedings….” This is known as the Rules of Proceedings clause, and it is an important component of the constitutional framework of separated powers.
One might be tempted to read majority rule into the clause. After all, the text does not specify a supermajority requirement, and the framers knew how to require a supermajority when they wanted one. So, by negative inference, one could argue that the Constitution gives the power to set the rules of the Senate to a simple majority of senators, and thus any supermajority requirement imposed on top of that should be unconstitutional.
But one should resist the temptation. People intuitively dislike the idea that one Senate majority could impose a supermajority requirement that would hobble future majorities without their consent. But the Constitution gives rulemaking authority to the whole Senate, not just the Senate majority. And crucially, unlike the House of Representatives, the Senate was conceived and constituted as a continuous body, with senators serving relatively long, staggered terms.
Ultimately we must accept the following two propositions: (1) the Constitution does not instruct as to how to resolve the interpretive dispute over whether majority rule is required wherever a supermajority is not specified; and (2) the Constitution does not directly empower any entity outside the Senate to regulate the Senate’s interpretation of the Rules of Proceedings clause.
Of course, none of that means the Senate must adopt supermajority rules—just that it may; and if it does, our only recourse to change them is through the political process. In U.S. v. Ballin, 144 U.S. 1 (1892), the Supreme Court wrote:
The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
I emphasize the last bit because it shows that, in a roundabout sort of way, the Constitution ultimately does make it the prerogative of the majority to set the rules of procedure—even when the majority adopts supermajority procedures for a time. That follows from what I said above: just as no one outside the Senate is empowered to impose majority rule on Senate proceedings, so no one outside the Senate is empowered to enforce the Senate’s supermajority rules.
The key here, as with so many aspects of our Madisonian system, is that the relevant constitutional actors, senators, are constrained not so much by the dictates of the Constitution as by the imperatives of politics.
Filibuster reform isn’t just about whether 67-, 51-, or 60-vote cloture would be best for the country, best for Congress, or most faithful to our democratic ideals. It’s about the power each individual senator has over the process. And for individual senators, the politics may cut both ways.
Jonathan Bernstein on Filibuster Reform
Jonathan Bernstein, sage of political science, put together a superb series of posts on filibuster reform last week as a guest blogger for Ezra Klein. I liked them so much I thought I’d gather up links to all of them, so they’d be indexed in one place. So, here they are:
- Our dysfunctional Senate
- The logic behind Senate rules
- The democracy behind Senate rules
- Guidelines for Senate reform
- Best quote about why Senate reform is needed
- Assessing Senate reform proposals, Part 1
- Assessing Senate reform proposals, Part 2
- Wrapping up Senate reform with Superbill
I’ll comment on some of these another time. It’s excellent stuff that really challenges reform advocates to think hard about their positions.
Filibuster Reform Note
David Waldman tosses out an intriguingly simple filibuster-reform idea:
We also hear a lot of demands for Dems to “make the Republicans filibuster” — in the old school sense — but under current rules that puts much of the burden on those who don’t want additional debate, and very little on those who say they do. If there are going to be changes made, what about considering one that keeps the numbers the same, but puts the burden where it belongs? What if cloture still required 60 votes, but that debate only lasted as long as at least 41 of the Senators voting against cloture remained on the floor?
Without thinking real hard about it, I like it. It faintly resembles the usual “live filibuster” proposals—which will never work—but with enough of a twist that it might actually succeed in ending the era of permanent filibuster while preserving the opportunity for minority “debate” time (whatever that’s worth). Not sure if that would be better than no filibuster at all, though.
Neither a Maker Nor a Supporter of Filibusters Be
In an editorial published yesterday in the NYT, Barry Friedman and Andrew D. Martin argue that all would be well for the Democrats, the Senate, and our democracy if Harry Reid would just make the Republicans really filibuster. Specifically, they recommend ending the practice of “dual-tracking,” in which the majority temporarily sets aside the issue under debate in order to turn to other business. Boy, is that a bad idea.
Friedman and Martin essentially suggest that the way to answer minority obstructionism is to allow more minority obstruction. They appear to believe that the minority will bear the costs and suffer the consequences of government deadlock, while the majority will “recover their opportunity to govern effectively.”
But, as Jonathan Bernstein says in this authoritative take-down, Friedman and Martin are wrong. For two reasons. First, when a multi-senator filibuster is supported by at least 41 senators who will vote against cloture, the cost of maintaining a live filibuster is mostly borne by the majority, who must stay in or near the chamber at all times to answer potential quorum calls by the hijackers. Without fifty present, there’s no quorum and the Senate closes shop—no phonebook reading required. The hijackers themselves need only plan to have two or so senators on the floor at a time (gabbing senator & bathroom-break senator). Second, the political/electoral consequences of failure to accomplish the government’s important business fall on the majority and on the president. If the government is broken, the voters are going to blame the party in power for breaking it.
Friedman and Martin don’t say otherwise, but it’s worth remembering that there is no way for the majority to beat a filibuster without 60 votes for cloture.
On tracking, the bottom line is that it is a tool of the majority party for the convenience of the majority party. It does not make filibusters easier; it is a response by the majority to the fact that filibusters are easy under Senate rules. Both parties, under a variety of Majority Leaders, have used it, because it helps the majority. If you don’t like the 60 vote Senate, then you should support a change in Senate rules to end the 60 vote Senate, because that’s where the filibuster gets its strength, not from the tactics that majority parties have adopted to deal with it.
The larger point here is that we need a government that works. “Making them filibuster” is supposed to be a way to make the minority pay a political price for obstruction while at the same time preserving the tools of that obstruction. But ultimately, the reason we shouldn’t bother with this approach is that the filibuster itself is simply not worth preserving. It is a fluke of the rules—a bug, not a feature. Bugs should be fixed, not accommodated.
The Founders’ Most Deliberative Body
Whenever there’s talk of the founders and their intent to make the Senate the more deliberative chamber of Congress, I think it would be worthwhile to bear in mind some context:
- The great constitutional debates of the first Congress took place in the House of Representatives, not the Senate. The House hardly suffered for lack of deliberation. Notably, the historic debate leading up to the famous “decision of 1789″—which established a congressional precedent by which executive officers were understood to serve at the pleasure of the President—took place in the House. This is especially interesting given that the issue under debate was largely about the unique constitutional powers of the Senate. (One view in the debate held that, because the Senate’s “advice and consent” was required to appoint top executive officers, Senate approval should also be required to remove them.)
- Senate proceedings were actually closed to the public and the press prior to 1794.
- James Madison, “father of the Constitution,” served in the House, not the Senate. That’s not decisive evidence of anything, but no one can deny that Madison had serious deliberation skills.
- When the first Congress was seated in 1789, only eleven states had ratified the constitution. Twenty years later, in 1809, there were 17 states, making 34 senators. There’s no magic number of senators above which limits on debate must be institutionalized to prevent runaway exploitation of the rules protecting minority participation in debate, but surely the size of the body is relevant to the need for such rules. And if so, well, it’s only natural that the Senate did not adopt such rules in the early years—it didn’t need to.1
- The history of senate procedure is actually more complicated than that. There apparently was a rule to stop debate and move to a vote—”moving the previous question”—which was discontinued in 1806. But discussion of that will have to wait for a future post. [↩]
The Theory of Constitutional Moments
Jack Balkin had an interesting post about the dispute over use of the reconciliation process and the Senate’s vanishing capacity to do important legislative business without it.
[U]sing reconciliation in this case will not fundamentally change the dynamic in the Senate, and it will probably not significantly alter constitutional understandings. We will still have polarized parliamentary style parties in a constitutional system that is not designed for parliamentary government because of its super-majority rules and many different veto points. In an important sense, this is the larger structural problem. The party system has mutated in ways that are inconsistent with existing constitutional mechanisms.
If reconciliation fails, Obama will have to attack the filibuster directly. But even if reconciliation succeeds, the constitutional moment will not have been concluded. The worst, I fear, is yet to come.
Here Balkin is alluding to Bruce Ackerman‘s theory of transformative “constitutional moments,” times of political crisis in which the electorate acts collectively to effect constitutional change through informal, extra-constitutional means. In the current context, Balkin is using the idea to describe a potential confrontation between the President and the Senate over the Senate rules. Those rules live behind the constitutional forcefield of Art. I, § 5, a bulwark for the separation of powers, and an inter-branch confrontation over them could be understood as a constitutional moment akin to FDR taking on the Supreme Court with the court-packing scheme.
I’m not wild about Ackerman’s theory, but I do think it supplies a useful vocabulary in which to frame the historical interplay between politics and constitutional law. The theory is meant to explain the great paradigm shifts in constitutional interpretation that occurred at crucial points in our history: reconstruction, the New Deal, and the civil rights era. For example, under Ackerman’s theory, the constitutional standoff between New Dealers and the Lochner era Supreme Court was resolved by the decisive action of the electorate who sided with the liberals and re-elected FDR with overwhelming support, thereby “ratifying” the New Dealers’ more expansive vision of congressional authority to intervene in the national economy.
The term “constitutional moment” can be useful for historical description—it’s certainly true that there was a kind of jurisprudential paradigm shift in the mid-Thirties, as the Supreme Court broke with old-guard doctrines like the freedom of contract—but I’m not sure Ackerman’s theory achieves much beyond that. In its strongest form, the theory ascribes to these epochal constitutional realignments a force equivalent to that of formal, Article V amendments to the text. An obvious problem here is this: how are you supposed to know when a constitutional transformation has occurred? And how are you supposed to resolve disagreements about the scope of such a transformation? When voters “speak” at the polls, the final tally of their votes does not in any obvious way translate into well-formed propositions of law. There are other criticisms—and plenty of rejoinders to them, I’m sure—but I’ve already taken this detour too far.
I’ll follow up with more thoughts on Balkin’s post later.
UPDATE: Made some needed clarifications suggested by Lee’s comment. Lee is right, of course, that the rules of congressional procedure involved in the filibuster and in the budget reconciliation process are not derived in any way from the Constitution. The point here though is not that these specific political disputes are about constitutional issues, but that they implicate the balance of powers among the branches in a constitutionally significant way. Changes above should clarify that.
Two Arguments for the Filibuster
There are two arguments in favor of the filibuster that are reasonable and merit consideration. I’m not persuaded by either one, but they do give me pause. Each in its own way advocates the filibuster as a tool that promotes rather than obstructs democratic or just outcomes in the legislative process. Each addresses special cases where simple majorities in the Senate are less likely to yield the desired democratic outcome.
1. The argument from intense minorities
The first argument, summarized here by filibuster expert Greg Koger, takes aim at simple-majority rule for inadequately accounting for the quality of support for a measure, rather than just the quantity of votes for it. Koger:
For some policy questions, some voters have a deeper stake than others. Last November, Californians voted on whether to allow same-sex marriage; isn’t it fair to say that people in same-sex relationships had a deep, personal stake in the question while heterosexual voters had an abstract (and typically less intense) interest in the issue? In a perfect world, we might recognize this asymmetry and attach special weight to the preferences of intense voters.
This is pretty much on a par with other anti-majoritarian arguments. There’s certainly a healthy strain of this thinking in constitutional law, where supermajority requirements can be justified as entrenched protections of minority rights. In general, I’m really not sure there’s a content-neutral way to resolve the debate. That is, such arguments tend to be dependent on evoking your sympathy for the minority. But flip the status quo to favor an unsympathetic minority (like Jim Crow racists), and the supermajority requirement doesn’t look so good anymore. (The First Amendment context is different, because, you know, that whole thing about sticks and stones….)
There’s a lot more to it, but I’ll just say this: I’m deeply skeptical that there could be an even remotely satisfying, policy-neutral justification of supermajority requirements.
I suppose there would be more to say for this view had the filibuster not evolved (as it appears to have now) into a straight supermajority requirement. If the process allowed for differentiation of substantive policy-based obstruction and partisan politics-based obstruction, then resorting to a filibuster might reflect intensity. Maybe. But surely there is not inherent democratic value in the intensity of views per se. It is only intense views that are “right” or “just” by our standards that deserve protections that depart from majoritarian norms.
2. The argument from malapportionment
The second argument, offered by Ben Eidelson at Slate, posits the filibuster as a democratic corrective against the inherent malapportionment of the Senate. Eidelson finds that the filibuster often serves to enforce the preferences of electoral majorities.
In fact, in 40 percent of the filibusters since 1991, the senators making up the “obstructionist” minority represented more people than the majority they defeated.
The traditional debate over the filibuster—which equates filibustering with a minority veto, and then argues the merits of giving the minority such a prerogative—entirely misses this fact. Democratic filibusters against President Bush’s judicial nominees were decried as undemocratic usurpations, for example. But nearly all of them fell into this category of “majority rule filibusters.”
I guess that makes this argument a Democratic corrective as well as a democratic corrective. But the obvious problem is, again, there seems to be no way to distinguish in principle between good and bad filibusters. They might correct malapportionment, or make it worse. I’m willing to live with the constitutional bias against electoral majorities if we can get rid of the excessive institutional ones like the filibuster.
Make Them Filibuster? A Second Look
The reason the majority party in the Senate doesn’t make the minority follow through on threats to filibuster—i.e., doesn’t make them actually filibuster by holding the floor in endless “debate”—is that allowing a real, live filibuster to happen is a no-win strategy for the majority. In fact, there are three different ways the majority will be the loser in a filibuster standoff.
First, they lose on the bill being filibustered. As I mentioned previously, there’s simply no way for the majority to break the filibuster if the minority controls 41 votes.
Second, they lose time to do other things. Every day the minority occupies the floor is a day that nothing gets done. Incidentally, this is why choosing a less important bill than the healthcare bill isn’t a good idea either. In fact, considering that the only hope that the majority has of gaining anything at all from a live filibuster is the possibility of winning the PR battle, forcing the filibuster on a small-beer bill is a much worse idea, because it makes the majority rather than the minority look ridiculous. Even with an important bill, the majority is in danger of looking incompetent if they let the process get shut down by filibuster. If they let it get shut down over something trivial, they look incompetent and their motives are incomprehensible even to their supporters.
And third, they may well lose the PR battle over the long haul. That is, the majority party may be the one that voters punish at the polls for legislative inefficacy.
Now, on that the third point, the majority’s cause might not be completely hopeless—particularly if the objective is not specifically to win a vote on the filibustered bill. Forcing a live filibuster might even be a smart ploy if used to kick start an orchestrated campaign to end the filibuster altogether. (More on that to come, but I agree with Ezra Klein that the way to do filibuster reform is to give it a delayed start far enough in the future that no one can be certain who will have the majority when the new rules take effect.)
The key here is that you don’t have to “beat” the specific filibuster to win the larger argument and move public opinion against the other guys and against the filibuster itself. But you have to be willing to let the minority shut down the Senate for long enough to make your point. And you have to be ready to mobilize an organized, national campaign to win the argument.
Dysfunctionocracy
Waiting out a filibuster is a high-risk, high-stakes game for the majority party in the Senate. The risk is high because the likelihood of minority defection is low. The stakes are high because, when the Senate is deadlocked and nothing gets done, the public will punish the incumbent majority at the polls.
Now, if you’re someone who is up on congressional procedure, follows the news fairly closely, and supports the legislative agenda of the majority party, you would no doubt blame the minority’s obstructionism for congressional failure. And hey, you’d be right. You’d also be in select company. According to this Pew Research poll, only 26% of Americans know that it takes 60 votes to break a filibuster. Actually, “know” might not be the right word. 26% answered correctly when asked whether it takes 51, 60, 67, or 75. The most popular, and most honest, answer was “Don’t know,” at 37%. Of the 63% who thought they did know, or who just wanted to take a stab at it, 41% got it right.
The point here is not that people are stupid. The point is that there’s a systemic crisis of accountability in American politics today. As Matthew Yglesias recently suggested, the voting public cares about results, not about congressional procedure. If the majority doesn’t get the job done, then maybe the other guys will. Switch parties and repeat. Cyclical dysfunction, made to order.
Make Them Filibuster?
Whenever people start complaining about the filibuster and minority obstructionism, it’s not long before a supporter of the majority says something like this, from reader Len’s comments: “I say make them filibuster. I want to see them on C-SPAN tying up the senate with their BS. See what the citizens think of that.” Recently a spate of writers and politicos have offered Democrats the same advice—make Republicans stage a real, live filibuster.
It’s not likely to happen. And if it did, it almost certainly wouldn’t work. Jonathan Bernstein explains:
[T]here is simply no way, under Senate rules, for the majority to prevail over a determined filibuster conducted by multiple Senators and supported by at least forty-one Senators. No way. Can’t be done. If the majority forced a live filibuster — forced the minority to talk indefinitely — then, well, they would talk. Forever. Until, eventually, the majority, which has other responsibilities (appropriations bills, other must-pass bills) admitted a humiliating defeat, and moved on.
The make-them-filibuster boosters think the majority can just “wait it out.” But what exactly would they be waiting for? There are two possibilities.
1. Waiting for Mr. Smith
First, it could mean waiting for a filibustering senator to collapse from exhaustion, à la Mr. Smith. But if more than one senator is involved, each can yield the floor to a cohort, thus maintaining the filibuster indefinitely—so long as there are 41 who support them against a cloture vote. (For the uninitiated, a cloture vote is called to close debate and proceed to final vote on a matter. It takes 60 votes to win on a cloture motion, to “invoke” cloture. The final vote, whether on a bill, an amendment, a cabinet appointment, or whatever, requires only 51 votes to win.) However, while it is relatively easy for the minority to maintain the filibuster, it is a real burden for the majority to wait it out, as they must maintain a quorum of fifty senators in the chamber (or close enough to appear within 15 minutes of a quorum call). Without a quorum, the Senate can’t do business, and the filibustering senator can sit and relax until a quorum returns.
2. Waiting for Mr. Godot
Second, “waiting it out” could mean waiting for a member of the minority to defect and vote for cloture. The inevitability of such a defection is the hidden premise of the reductio ad C-SPAN argument, but the exact mechanism which would bring about the defection is often not sufficiently scrutinized. With the minority’s ridiculous antics on constant display, it is assumed, public pressure will mount against the obstructionists and vulnerable moderates will cave. This is known as attrition.
I wouldn’t dismiss this possibility entirely.1 But considering the dynamics of the situation, it’s an extremely risky strategy for the majority. It’s a longshot, and it could easily backfire.
Defection isn’t very likely, because in most circumstances, it won’t be in the potential defector’s best interests. Generally, a senator’s position on major legislation will come down to an assessment of electoral prospects: the reelection calculus. Politicians are rational maximizers of political capital. Once a filibuster is underway, they will have already done the math. And even if the filibuster turns out to be more unpopular than unexpected—unpopular enough to influence crucial swing voters in the next election—a potential defector stands to lose the support of the party base by betraying its cause. Without the base, the reelection calculus may be grim indeed.
Lastly, while the spectacle of senatorial absurdism will undoubtedly move public opinion, it’s far from certain that the movement will be toward passage of the majority’s bill. The floor speeches, for one thing, would not need to be as ridiculous as the make-them-filibuster crowd likes to think. Seth Masket:
[A] true filibuster today probably wouldn’t involve a whole lot of phone book-reading. [...] Today, there are dozens of policy shops and hundreds of conservative writers who could generate days and days of material for filibustering Republicans to read. Fox would likely televise many of the speeches live and portray the filibuster as a great patriotic act. If anything, the Republicans would control the discussion during a filibuster more than they do now.
Indeed, Republicans are likely to tell stories of hardship and woe—stories that you and I might think support the cause of reform—but conclude, in defiance of sense and logic, that the Democrats’ plan for “government takeover” will make it all worse. And then, as the Senate itself comes increasingly to represent government ineptitude, Republicans will drive the point home, as they so often do: Government can’t solve the problem, because government is broken. Nevermind that they’re the ones who broke it.
- I’ll post some thoughts later about how an attrition strategy could be successful. [↩]
The Filibuster and the Accountability Problem
Jonathan Bernstein argues that eliminating the filibuster would not favor majority rule so much as majority-party rule. That is, abolishing the filibuster would not suddenly establish a truly majoritarian, democratic procedural regime in the Senate, as many might hope. Rather, it would fortify the majority party’s control, which would not and does not always facilitate the will of the majority of senators, as the majority leadership sets the agenda and may use its considerable power to prevent measures from coming to a vote, even when such measures might otherwise garner 51 votes (say, e.g., 40 Republicans and 11 Dems).
But the problem with the Senate is not ultimately about the relative purity of majoritarian rule. It is about accountability. By allowing the minority to obstruct the majority’s program, the filibuster severs the lines of accountability between elected representatives and the performance of the government.
In a functional democracy, representatives (and parties) should compete for electoral support and be judged by the voters on the basis of the success or failure of their policies. But, as Ezra Klein has pointed out, the arcane and convoluted cloture rules of the Senate make it possible for the minority to block the majority’s program and to benefit from the majority’s failure to enact that program. The result is that the public blames the majority for failures caused by minority obstructionism. Klein:
Small-d democrats should prefer a system in which the majority can enact its agenda and then must defend it before the voters to a system in which the majority cannot enact its agenda and must explain the complicated mechanisms behind its fecklessness to the voters.
In a system without the filibuster, the threat of repeal, as opposed to the impossibility of action, becomes the dominant player in legislative design, and it’s much to be preferred. The clear accountability of passing laws and being judged on their success is far superior to the confusing campaigns that result from promising the passage of laws and then failing to surmount a filibuster. Strengthening that crucial relationship between cause (one party got elected) and effect (they passed bills) is not only better from the perspective of assuring action on problems. It’s also a road to a better-informed citizenry that knows who to blame, and who to reward, for the condition of the country and the performance of the most recent Congress.
So can we abolish the filibuster? How? I’ll save that discussion for another post.