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Dangers of the filibuster

Guest Blogger

In the past 50 years, the filibuster has become institutionalized in the Senate and has had a powerful impact on policy and legislation. In “Filibustering: A Political History of Obstruction in the House and Senate,” recently released by The University of Chicago Press, Gregory Koger explores the slippery rules that guide the process of obstruction. Koger is assistant professor of political science at the University of Miami and has worked as a legislative assistant in the House.

By Gregory Koger

The past two years have tested the ability of the U.S. Congress, led by sizable Democratic majorities, to respond to severe crises. The results have led to severe criticism of the Senate, particularly due to the effects of filibusters on major legislation like health care reform and energy legislation.

The primary barrier to the Democratic agenda has been the 60-vote threshold to end debate in the Senate. More subtly, experts have noted a [broader pattern of Congressional ineffectiveness] (http://www.americanprogress.org/issues/2010/03/filibuster_report.html) at basic tasks like reauthorizing legislation, considering nominations, and passing appropriations bills.

It is worth stressing three points about the nature of Senate obstruction. First, unlike a presidential veto, filibustering is not provided for in the U.S. Constitution; it is an informal practice that persists with the tacit acceptance of the Senate majority.

Second, this country has already observed a complete meltdown of the legislative process due to filibustering, leading to historic reforms. For the first century of Congressional history, there was ample obstruction in the U.S. House of Representatives, culminating in drastic reforms of the 1890s that centralized power in the leadership of the majority party.

Third, in the Senate, filibustering was relatively rare until the 1960s. Due to a number of factors—growing workload, opportunities to travel, fundraising pressures—senators were no longer willing to engage in traditional “attrition” filibusters and, instead, began relying on the cloture rule as their primary response to the threat of a filibuster. This brings us to our current state.

Senate obstruction can promote the public interest. It promotes moderation in legislating, limiting the progress of ambitious majorities but also ensuring that their successes will stick.

Legislators obstruct to ensure an adequate opportunity to debate and offer amendments, which promotes some degree of dialogue -- or at least a public record of the objections to a bill. The House, for all its efficiency, tends to muzzle minority party members who are powerless to object.

Filibustering also limits the ability of party leaders and interest groups to force through legislation by coercion or donations.

Finally, senators can use the power to obstruct—including holds—to have special influence on issues that are important to them. While this power can be used for simply parochial ends (e.g. Sen. Shelby’s blanket hold on nominations to extract more spending in Alabama), it can also be used to ensure cooperation by federal agencies or legislative action on neglected problems.

However, the events of the 111th Congress have highlighted two dangers of filibustering. First, the rules and practice of the Senate presuppose some degree of bipartisanship and public-spiritedness. Yet, on a variety of issues, Senate Republicans have apparently made a strategic choice to avoid negotiations and compromise on major issues (even skipping committee markup sessions en masse) while slowing the Senate’s progress on routine matters.

This is somewhat understandable for a party seeking to regain its credentials as a conservative party, and it seems to reflect the restlessness of the conservative base of the Republican party.
Still, the Republican strategy (combined with some aggressive behavior by the Democratic leaders) creates a mismatch between the rules of the Senate and behavior of its members; there is a deep, unstable tension between the bipartisan rules of the Senate and the partisan gamesmanship of its members.

Despite this challenge, senators have managed to make slow progress on major measures: a stimulus bill, health care, a Supreme Court nomination, and now financial reform.

But filibustering has wider consequences. There are dozens of minor bills and executive nominations that have been blocked or slowed by a quiet threat that, if the bill or nomination were to come to the floor, the majority will have to overcome a filibuster to pass it. For many such measures, senators cannot spare the time and effort to squelch a filibuster, so they languish in Senate purgatory.

Even middle-tier legislation like appropriations bills or reauthorization of major laws may be put off for months or years. This creates a vacuum of Congressional inaction that is filled by executive assertion—recess appointments, executive orders—or by bureaucratic drift. Senate obstruction is not the only cause of Congressional abdication, but it is definitely a contributing factor.

By Steven E. Levingston  |  July 2, 2010; 5:30 AM ET
Categories:  Guest Blogger  
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