I Got A Fever, or Why We Need More Senate Filibusters

In the recent debate on health care legislation, Senate rules forced Democrats to come up with 60 votes to invoke cloture and end the threat of a Republican-led filibuster so that health care legislation could then come to a vote. Because there are only 60 Senators who vote consistently with the Democrats, this meant the balance of power accrued to a bloc of moderate Democrats, led by Nebraska Senator Ben Nelson, who used their strategic position to extract huge concessions for their states in return for supporting the leadership’s proposal, and to block passage of any bill that contained provisions, such as the public option, that they opposed. In the end, the health bill passed, but just barely and in watered down form that made it more like insurance reform rather than a fundamental reworking of the fee-for-services, employer-based system most Americans utilize.  The outcome produced howls of protest from liberals, even those who accepted the outcome as better than no bill at all.  Paul Krugman’s comments are typical: “It was, however, a close-run thing. And the fact that it was such a close thing shows that the Senate — and, therefore, the U.S. government as a whole — has become ominously dysfunctional.”

The most obvious evidence of that dysfunction, according to Krugman and others, is the increasing use of the filibuster. The need for at least 60 votes to bring legislation to vote, rather than a simple majority of 51, allows a Senate minority to prevent passage of legislation supported by a Senate majority and by the public.

It’s easy to dismiss Krugman’s objections, of course, since he’s an economist (and is paid to editorialize) and not a political scientist.  But even some knowledgeable students of politics have come out against the filibuster. So I want to take some time to explain why Krugman is wrong, and why the filibuster serves a very useful purpose, especially in this increasingly polarized atmosphere.  To anticipate my concluding point, I will argue that we need more filibusters, not less. Let me explain.

As most of you know, the filibuster refers to senators’ use of procedures, most notably holding the Senate floor, to prevent a vote on legislation. The filibuster, (as Krugman and others critics are fond of pointing out) is not explicitly part of the Constitution – it is a Senate rule that developed very early in that chamber’s history.  Under the Constitution, each chamber is granted authority to develop their own rules. (This will become important when I talk about reform.) Although the actual term filibuster didn’t come into common use until the 1850’s, both the Senate and the House operated under rules dating back to the beginning of the 19^th century that allowed almost unlimited debate. (The history is a little more complicated than this, but fully documenting it would require a separate post. However, Greg Koger has some very short, readable posts gathered here that provide some fascinating background.)  Eventually the House ended the practice of allowing unlimited debate as it grew in size, but the Senate retained it until 1917, when its rules were finally altered to allow 2/3 of the Senate to invoke cloture to end a filibuster, that is, to end debate and bring an issue to vote. That number was reduced to 3/5, or 60 votes, in 1975. (See a brief Senate history of the filibuster here.)

If Krugman and others’ arguments against the filibuster seem familiar, it is because they parrot the claims made by Republican supporters four years ago, when the then minority Democrats used the threat of a filibuster to block the Republican-controlled Senate from voting on ten of President George W. Bush’s judicial nominees. Were it not for a compromise constructed by a gang of 14 moderate Senators that allowed some, but not all, of Bush’s nominees to come to a vote, Senate Republicans threatened in 2005 to invoke the “nuclear option”, that is, to blow up the use of the filibuster. (Essentially, this was a parliamentary procedure that would allow a majority of Senators – 51 as opposed to 60 – to invoke cloture to end a filibuster.) Their efforts to make stopping a filibuster easier were opposed by a litany of progressive groups, such as MoveOn.org, as well as minority leader Senator Harry Reid, who defended the use of the filibuster as a way to protect minority interests and prevent confirmation of judicial nominees that they felt were too politically extreme.

So we see that what’s bad for the goose is bad for the gander. Or Donkey and Elephant, as the case may be.

The growing chorus of complaints from both liberals and conservatives regarding the use of the filibuster reflects in part its increasing frequency, a trend documented by political scientists such as Barbara Sinclair.  She finds that in the 1960s, 8% of major legislation was affected by the threat of a filibuster, but by the 1980s that had risen to 27% and after Democrats retook Congress in 2006, it jumped to 70% of major legislation.  (I will try to get more detailed data from Sinclair to post.)  Suffice to say, however, the use of the filibuster, and of the cloture votes to end it, is on the rise.

What explains the rise in the use of these tactics?  A reasonable explanation is the growth in partisan polarization in the Senate as the moderate middle shrinks in size, something I’ve discussed in depth in previous posts.  But as Koger points out, the rise in the use of obstruction-related tactics predates the increase in polarization. Instead, he suggests that the use of the filibuster is on the rise because Senators have found it to be a more efficient tool for protecting individual prerogatives.  Sixty years ago, when a Senator took to the floor to filibuster, senators would merely wait him out, employing a strategy of attrition. It was an effective but time-costly strategy.  (If you want to see what it was like, watch Jimmy Stewart in Mr. Smith Goes to Washington.)  But in the more hectic Senate schedule of today, when business is increasingly conducted in the Senate chambers on a Tuesday-Thursday schedule so that Senators can return to their home states, that strategy is no longer efficient. Instead, Senators are more willing to begin debate by invoking cloture at the start, thus forestalling a threatened filibuster.  That, in turn, makes it easier for individual Senators to use the filibuster, because they know it will be ended through a cloture vote. In other words, as the cost of filibustering in terms of using precious Senate time has lessened, the frequency of its use goes up.

More generally, we tend to think of the filibuster as a tactic used by the minority party to thwart the will of the majority.  But that’s misleading – members of the majority party are equally obstructionist, but their threats to filibuster tend more frequently to get resolved behind closed doors, before reaching the stage of an actual filibuster.  (These objections often take the form of a Senate “hold” – an injunction on an action that is the precursor to a filibuster.)  In short, it is more accurate to view the filibuster as simply another manifestation of the Senate’s propensity to protect the influence of individual Senators. At its core, the Senate is a deliberative body.  Critics of the filibuster like Krugman and Ezra Klein argue that the filibuster, as now used, stifles debate. This is different, they argue, from its “proper” function, which is to “protect” debate.  But this is a distinction without a difference.

Consider the health care debate.  The threat of a Senate filibuster didn’t empower the minority Republicans – it empowered moderate Democrats in the majority, like Lieberman, Landrieu, Lincoln and Nelson.   Republicans, with the conspicuous exception of Snowe, were largely left out of the debate and in the end not one of them could bring themselves to vote for the bill. Nor did it stifle debate – indeed, it did just the opposite. In the end, the need for 60 votes forced the Senate leadership under Reid to make several significant concessions that eventually changed what might have been health care reform into significant insurance reform.  Now, you might not agree with the outcome – you might have preferred a single payer option, or a bill that contained a public option, or one that extended Medicare.  But all these elements were considered and they were eliminated as the price necessary to attract those 60 Senate votes.

In truth, what we see here is that the latest criticisms by Krugman and Klein and others regarding the use of the filibuster is largely driven by the outcome it produced in the health care battle, rather than any principled debate on its merits.  (And that’s generally the case with any reform – think about debates regarding the Electoral College. Democrats really got in a snit in 2000 when Gore won the popular vote but lost the Electoral College vote [and yes, he really did lose the Electoral College vote.]) Indeed, I’d feel a lot better about Krugman’s complaints if I heard him voice them in 2005 by arguing for an up or down vote on Bush’s judicial nominees. But no matter… pointing out critics’ hypocrisy isn’t the issue here – defending the filibuster is.

My larger point is that the Senate, unlike the House, is a chamber designed to protect the rights of individual Senators to deliberate.  In this respect, if the filibuster didn’t exist, it would have to be invented.  Put another way, Senators increasingly utilize the filibuster because it is the most economical way to protect individual senators’ deliberative rights. Eliminating the filibuster, or making it easier to invoke cloture, would likely merely shift the means by which Senators protect their prerogatives.  How do I know this?  Because the history of the Senate shows that the chamber resists any reform designed to weaken the autonomy of individual Senators.   Consider the compromise engineered by the Gang of 14 in 2005 – when the Republicans threatened the nuclear option to end the filibuster – moderates in both parties scrambled to find a compromise to defuse the crisis in order to prevent the imposition of de facto majority rule.

Put another way, Senators will do almost anything to prevent their chamber from becoming a facsimile of the House.  Let me be clear here – nothing stops the majority party right now from changing Senate rules to empower the majority party.  That they refuse to do so reflects their understanding that, under the Constitution, the Senate serves a different purpose than the House.

To see what would happen if we changed the rules in the Senate to allow the majority unfettered power, we need only look at the House – a chamber that lacks any supermajority requirement.   Here the Republicans were largely a peripheral force during the health care debate – but so were conservative Democrats; with the conspicuous exception of the Stupak amendment, the health care bill was essentially developed by the party leadership, working from three committee bills. Only one Democratic amendment was accepted on the floor. In the end fully 39 Democrats – almost all conservatives – were forced to vote against the bill.

My point is that there was arguably less debate in the House – certainly the conservative wing of the majority party had much less leverage to move the bill closer to the middle than did their Senate counterparts.   More generally, the trend in the House in the era of increased party polarization has been away from deliberation, and toward majority-party rule.

In the end, the debate is not really about the filibuster – it is about the role of the Senate in our constitutional system.  As such, it is a debate about federalism – about a system of representation that by recognizing the rights of individual states regardless of population allows for regional interests to influence Senate debate.  Sometimes that means the minority of Senators can thwart the will of the majority of Senators. But it also means the filibuster can be used to prevent a majority of senators who represent a minority of the national population from enactinglegislation or confirming nominees to the court or executive branch.  That is, the filibuster can be used to protect majority interests of the public.

More generally, by forcing deliberation, it protects states’ interests. The threat of the filibuster allowed Ben Nelson to make certain that the federal government would pay for any additional Medicaid costs imposed on his state of Nebraska.  Changing the filibuster rule will not eliminate the tactics of obstruction employed by Nelson and other senators to protect their states’ interests.  To do that you have to change the reasons why Senators refuse to eliminate the filibuster and other obstruction-oriented tactics – you need to change federalism. Unlike in the House, these tactics insure that minority interests are protected against a majority.  It means that the federal government can’t put a nuclear waste dump in your state, or relocate the Gitmo terrorists there, or do any number of things which the majority might like but which your own state’s residents oppose.

Indeed, there is an argument to be made that in this polarized atmosphere, we want more filibustering, not less, in order to protect regional differences and to make sure that whatever passes the Senate must at least attract some moderate support.   Furthermore, a strong case can be made that the filibuster prevented the Senate from passing a more liberal piece of health care legislation that was farther out of step with the more moderate impulses of Americans, the cost of which would be borne by many states whose residents opposed key elements of that reform package.

In the end the Senate passed health/insurance reform.  It’s not what Krugman or liberal Democrats wanted.  But we forget it’s not what conservatives Republicans wanted either. In an increasingly polarized Senate, in which Democrats grow more liberal and Republicans more conservative, there’s something to be said for maintaining a mechanism that, as we saw in the health care debate, protects the interests of the moderate middle.

When conservative and liberal bloggers are both outraged about the details of the health bill, we need to remind ourselves that the American political system is premised on the idea of checking the passions of the majority through a variety of mechanisms, included a sharing of powers at the national level, and a federalist system that recognizes the role that individual states play.  It is a unique system in the world, one founded on the ideal of limiting the ability of government to impose its views on the people.  The filibuster, although it has no Constitutional basis, is an outgrowth of that underlying system. Want to end the use of the filibuster and all other tactics of obstruction?   Remove Senate representation based on states – that is, federalism.  Replace geographic representation with at large elections, with representation apportioned by how many votes your party gets.  That would end the use of the filibuster and other mechansisms designed to protect minority interests in a heartbeat.

That’s really what the debate is about:  should we change the underlying premise of Senate representation?

In the meantime, let me paraphrase Christopher Walken in his justly famous Saturday Night “cowbell” skit:  in this era of polarized parties dominated by extremists, I got a fever, and the only prescription is more filibusters, not less.

Addendum: Ezra Klein took questions on his article on the filibuster today and perpetuated some of the misleading ideas about the filibuster that I address above.  Note in particular  how he equates majority vote in the Senate with the “public interest” and suggests that’s what the Framers wanted as well.  As an alternative perspective, go read Madison’s Federalist #10 for starters. Here’s the link to Klein: http://www.washingtonpost.com/wp-dyn/content/discussion/2009/12/24/DI2009122402454.html