Notes on the filibuster
If you happen to be near C-SPAN 2 at 10 a.m. Eastern today, you can catch me and a couple of other folks talking about the filibuster at the American Political Science Association. The moderator, Gregory Koger, is author of the book "Filibustering," which presents a bit of a problem for his panelists: We're actually going to have to know what we're talking about. Luckily, he's sent out his questions beforehand. Here's what I'm planning to say:
1) The 111th Congress has passed several landmark bills, including the stimulus act, health-care reform and financial regulation reform. Has Senate obstruction really had much influence on the legislative process?
You can answer this a few different ways, though all of them begin with the word "yes."
First, take the marquee pieces of legislation: Health-care reform, the stimulus and financial regulation. In a world without a filibuster, instead of signing every single Democrat to those initiatives, which means every single Democrat had veto power over anything they didn't like in those initiatives, you would have needed 51 of the 59 or 60 Democrats serving in the Senate. So rather than placating Max Baucus, Mark Pryor, Mary Landrieu, Jim Webb, Bill Nelson, Evan Bayh, Claire McCaskill, Blanche Lincoln, Tom Carper, and Ben Nelson, you would've only have needed to placate one of them, and then you could've negotiated with the others from a position of strength in which passage was assured and their vote would've simply been preferable.
Legislation constructed in that world simply looks different. Some might say it's worse, more extreme. I'd say there's less legislating to the lowest common denominator, and you can make harder choices. Either way, the stimulus is larger, maybe by a couple hundred billion dollars. Health care has a public option or a Medicare buy-in. That's the stuff people usually think of when they talk about the filibuster.
But as Greg writes in his book, breaking filibusters isn't impossible: It just takes time, procedural commitment and, though he doesn't say this, a sufficiently large majority. Sufficiently large majorities, however, are willing to expend time and play procedural hardball on their top issues. In those cases, the filibuster modifies the legislation -- maybe it makes it worse and maybe it makes it better, but it doesn't kill it off entirely. It's smaller bills with less commitment where filibusters and holds simply keep anything from happening at all: everything from nominations to regulatory changes to the everyday upkeep of the government.
And then there's the universe of legislation that never really gets attempted because the filibuster slows things down such that there's no time and little appetite for new fights. Nominations and funding bills simply have to get done, and so they usually do. But plenty of other efforts that should be considered never are, as there's just no space for them on the calendar.
Finally, I think the 111th Congress is a misleading Congress to look at. We've seen a once-in-a-generation alignment of forces: A 60-vote majority for the first time since the 1970s, a new and (initially) popular president, a massive financial crisis. Imagine this same environment and this same sort of procedural team play with 53 Democrats. That's a world in which our big problems simply do not get addressed -- and it's much closer to the world that we normally live in. I'd also say that on all three major issues -- financial reform, the stimulus, and health-care reform -- we ended up doing a lot less than was needed, and punting some of the hardest questions out to the future. So here's the report on our Congress: Even when given a generational opportunity to make progress on our problems, they can't make as much progress as we really need made. Eventually, that dynamic is going to catch up with us.
2) Name up to three reforms that you think the Senate should adopt, no matter which party is in the majority in the 112th Congress?
First, let's do the common-sense reform: I'd like to see the time-costs associated with obstruction reduced. If the filibuster was more like a 60-vote requirement and less something that minorities could use to slowdown the Senate by forcing everyone to spends weeks on an unemployment extension that passes 97-0, I think that'd be a good idea.
As a broader point, we need to think hard about the procedural arms race that the United States Senate has turned into. The filibuster has become a de facto 60-vote requirement, which wasn't the intention, and reconciliation is increasingly used for all manner of bills, including the Bush tax cuts and the health-care reform law, which also wasn't the procedure's original intention. Both situations lead to worse and more awkward legislation. We're also seeing the majority offload issues it wants to address but can't do over minority obstruction onto the executive branch, or the Federal Reserve. Think of the EPA handling carbon emissions, or the Fed dealing doing quantitative easing because only 59 Democrats are willing to vote for further fiscal policy. This devolution of power from Congress to actors who are less accountable but more able to act is something we need to consider very carefully. The outcome of obstruction isn't always gridlock -- sometimes it's simply a different form of action, and not always a form we should prefer.
3) How would we know if the Senate is broken? At what point would you say that the Senate needs to change?" (In other words, what are the proper metrics for evaluating the functioning of the Senate?)
I don't know that there is on objective metric for this. A libertarian might be ecstatic to see the Senate collapse into gridlock and acrimony. A deficit hawk might not. But either way, "broken" isn't a necessary measure here. We don't need to be so binary. "Better" and "worse" are more useful concepts. If the Senate isn't working well, and we could make it work better, the fact that it's not necessarily totally broken isn't a good reason to delay reforms.
And to the point of whether the Senate is working well, I'll leave folks with two of the underlying political dynamics that seem to be driving the place. We have rules, as everyone agrees, set up to encourage bipartisan cooperation. But the system gives the minority party both the incentive to see the majority fail, as that's how they win the next election, and the power to make them fail. So we have rules for a bipartisan world -- but we live in a partisan world. As Ron Brownstein likes to say, we've got parliamentary politics clashing with supermajoritarian rules. I'm not sure that really works.
Second, I think there's a real and growing question of political accountability. Political scientists like yourselves say that people vote on conditions, not politics. A recent Pew poll found that only 26 percent of Americans knew that you needed 60 votes to break a filibuster. Another 25 percent though you only needed 51. So in a world where people don't pay much attention to Congress and don't understand it very well and mainly vote based on a rough approximation of how well policies seem to be working in their own lives, how're they supposed to judge the majority's program when the majority isn't able to implement it? What're the chances that people are judging the majority based on outcomes driven by the minority? I'd say pretty high, and that's something that should worry us.
Finally, a lot of the defenses of the filibuster seem to be, well, idealistic. They talk about the preservation of debate, though anyone who's ever watched the Senate make its way through these bills knows that we're not seeing a high-minded effort at persuasion take place on the floor. They talk about the protection of minority involvement, and the incentives for bipartisanship. The problem, they say, isn't the system, but that it's being abused.
But if the system leads inexorably to abuse, then it's not a good system. I might prefer a world where the filibuster protects debate and ensures bipartisan outcomes, but I don't think we should pretend that's the world we have. The choice is between electorally driven gridlock and something else. I'd like something else.
September 3, 2010; 9:30 AM ET
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