A Dysfunctional House

It is no secret that the House of Representatives is dysfunctional. As the 118th Congress draws to a close, we are reminded of its record number of parliamentary failures – from the inability to choose a Speaker at the outset of the Congress, to the innumerable special rules that were defeated on the House floor. Important bills were brought to the floor and defeated for no other reason than that they failed to secure a majority of the votes cast. The absurd parliamentary requirement that legislative actions require a majority to support them has increasingly hamstrung the House in its pursuit of vital constitutional duties. It is high time for the House to reconsider its commitment to mindless majoritarianism.

Nowhere in the Constitution does it specify that a majority vote of the House is required to pass legislation¹. Quite the contrary: the only voting rules mentioned in the Constitution are supermajority vote requirements, such as the 2/3rds vote to override vetoes, and the 3/5ths vote required to pass bills in the Senate. Constitutional scholars have long recognized Congress’s near-absolute authority to devise its own rules under the so-called “Rules of Proceeding” clause in Article I, section 5, clause 2. The House has, historically, chosen to organize itself as a majoritarian body. But there is no constitutional basis for this decision and the House is perfectly empowered to choose another mode of voting, just as the Senate has.

It is well-established that the Speaker of the House is the only Member allowed to bring legislation to the floor. This is a perfectly sensible method of conducting business – with 435 Members all screaming for their pet bills to be taken up, the House needs a single leader to convert chaos into order. But lately, the Speaker has been having a tough time. Members have increasingly forsaken their sacred duty to obey the Speaker on procedural votes, leading to an absolute mess on the House floor. Members now routinely threaten to depose the Speaker, as happened to Kevin McCarthy just last year. This state of affairs cannot continue if we want the House to fulfil its functions as the infallible Founders intended. The rules must be changed to facilitate the Speaker’s constitutional obligation to control the House.

A Simple Fix

The root problem at the center of the House’s dysfunction is purely a technical one: the requirement that a majority of Members must vote “aye” in order for bills to pass. In prior decades, this might have been a relatively easy standard to meet, and thus it has not received much scrutiny. But there’s no denying that it has become harder and harder for Speakers to gather this majority. Members today are not like their peers in prior historical epochs. They are more partisan, more egotistical, more “independent”. And they have largely given up on any notion of service to the public good in preference to their own personal, political interests. We can hope in vain for Members to change their behavior, but in the absence of such an unlikely revolution, we must change the rules.

There is a simple fix to this technical parliamentary problem, if we just look to the Senate for inspiration (as we should for all procedural questions). As we know, the Senate’s filibuster does not actually operate against the bill itself. Rather, it only affects a mere procedural motion: the motion for cloture. This creative sleight of hand offers a cogent model for reconfiguring the House’s procedural landscape. Doing so requires only two small changes to House rules.

The first is a new rule, to be adopted at the beginning of the Congress, that simply asserts the commonsense principle that whenever a bill fails to be defeated, it passes. Thus, under this rule, bills are deemed to have passed unless there is a successful motion to defeat the bill. That’s it – completely straightforward, simple, and intuitive.

The second is the creation of a new motion – the motion to defeat. How the House has managed to exist for over 200 years without a procedural mechanism to defeat bills is anyone’s guess. But better late than never. The advent of this motion would allow the House to state, unequivocally, that the bill under consideration should not become law. And here’s the twist that converts the House from a dysfunction majoritarian body into a functioning legislature like the Senate: as with cloture, the House’s motion to defeat can only be adopted by a supermajority vote of 3/5ths of all Members.

A Functional House

The benefits of this small change to House procedure would be enormous. The Speaker would no longer find himself held hostage to small groups of Members. The most extreme Members would no longer be in a position to drive the agenda, and bills would no longer be defeated just because a bare majority says they shouldn’t pass. Instead of needing to round up 218 votes to pass bills (a ridiculously high threshold, not used in any other country), the Speaker would only need to focus on the 174 (responsible) Members needed to ensure that the motion to defeat fails.

The change described here has the added benefit of encouraging bipartisan compromise. Assembling the supermajority coalition necessary to successfully defeat bad bills is hard work that can only be achieved if Members put aside their partisan differences and agree to work together. With mindless majoritarianism gone, Members would be incentivized to negotiate compromises – I’ll agree to block a bill you dislike, and in exchange, you’ll agree to block a bill that I dislike. This type of legislative logrolling is absolutely essential for the House to work its will, yet it is virtually absent from current House practice.

The House of Representatives is not just the majority – it is all 435 Members. But if we allow a majority to pass bills, are we not also saying that those Members not in the majority have no say in what our laws should be? Why are all of these other Members being disenfranchised by arcane parliamentary rules? Is that really what the Founders intended? If simple majorities are allowed to pass bills, the constituents of all of the other Members are effectively denied representation. This majoritarian mode of proceeding makes a mockery of democracy. By contrast, the reform described here let’s everyone make laws.

Balancing the Senate

Whenever I drink tea, I obviously do not ingest the boiling hot liquid directly from the cup. Instead, like all normal people, I spill the tea into the saucer – thus allowing it to cool so that it can be slurped up from the saucer itself. It is no surprise that this extremely relatable activity has been used as an analogy for legislative procedure. The House is the scalding cup; the Senate is the cooling saucer.

While much has been written about how the Senate fulfils its role in cooling “hot” legislation from the House, comparatively little debate has occurred on the question of how the House gets its bills boiling in the first place. Obviously, the constitutional structure of bicameralism invented by the Founders (praise be upon them) requires a proper balance between the two halves of Congress. For the Senate to be the cooling saucer, we must first ensure that the House brews its legislative tea at a sufficiently high temperature.

The Senate’s primary mechanism for cooling hot bills is the filibuster. The new House rule proposed here can be appropriately characterized as the unfilibuster. The unfilibuster is the perfect (and arguably necessary) complement to the filibuster. It is its mirror image. The filibuster says that a supermajority is needed to pass bills; the unfilibuster says that a supermajority is needed to defeat bills. The filibuster empowers a minority to prevent bad legislation from passing; the unfilibuster empowers a minority to pass bad legislation. The filibuster filters out bad bills; the unfilibuster provides a steady stream of bad bills for the Senate to filter. The filibuster and the unfilibuster are two sides of the same coin. You literally can’t have one without the other.

Criticism

Critics might naturally gravitate towards certain spurious arguments designed to derail this important reform effort. I take the time here to thoroughly refute all such arguments.

First, some might worry that this change to House procedure would interfere with the important mandate known colloquially as the “Hastert Rule”. This time-honored precept, observed continuously since 1789, requires that all legislation in the House must first be approved by a majority of the majority party before coming to the floor. But as you can see, it is mathematically impossible for this new rule to violate the Hastert Rule. Even with the smallest majority of 218 seats, the Speaker would still need to gather 174 votes to kill the motion to defeat. 174 is more than 50% of 218. Therefore, the Hastert Rule is satisfied.

A second objection that might be raised is that the rule encourages the passage of bad bills that only a minority of the House supports. There are several answers to this concern. First of all, this type of objection could easily be applied to the Senate filibuster as well, which (theoretically) could prevent the passage of good bills that a majority does supports. Since no one argues that the filibuster is bad for this reason, it follows that facilitating the passage of bad bills that a majority does not support is also good.. Secondly, the Founders (in their wisdom) clearly intended for the House to pass bad bills. That is its proper constitutional role, mirroring the Senate’s duty to defeat bad bills. So bad bills passing the House is actually a sign that the system is working, not an indication that anything is wrong. We must move beyond this facile notion that just because a rule is directly responsible for a problem, then the solution is to not have that rule.

Another quibble is that, arguably, this reform is unnecessary. After all, if the House wants to pass bad bills that a majority cannot in good conscience support, it already has the procedural means to do so. All that is required is for the more responsible Members to abstain from the proceedings and allow bad bills with little support to pass over their objections. But obviously this is an unrealistic assumption about Members’ behavior. Members are incentivized to virtue-signal to their constituents that they oppose bad bills by performatively voting against them. It’s an unfortunate political reality but it’s true: Members selfishly don’t want to be perceived as supporting bad things. In order to change the behavior, we must change the rules so as to neutralize this incentive.

Finally, there is the argument that the House’s majoritarian tradition is worth preserving for its own sake. Why change centuries of history? This tedious appeal to traditional authority was conclusively refuted by Thomas Jefferson in section XLMCII² of his Manual of Parliamentary Practice and we ought to think twice before contradicting Jefferson. Are we to be held hostage by the feeble voices of the past, or are we going to do as James Madison directs and “conftruct the moft ftupendouf Congreff poffible”?³ If the Founders taught us anything it’s that change is always good and completely overturning centuries of accumulated wisdom will probably work out. To deny this is to admit that the Founders could make mistakes – something that no reputable citizen in our republic would do.

Conclusion

Parliamentary procedure is a difficult area to reform for the universally-acknowledged reason that it is so very interesting. The public clamors for more of it, and the fate of every motion and unanimous-consent request is anticipated with riotous intensity by all sides. Because the topic elicits such strong (and often violent) emotions, the path toward reform appears harrowing. But this should not dissuade us from trying.

The proposal here is straightforward and commonsensical. A supermajority vote requirement to defeat bills frees the Speaker from the onerous burden of needing to convince people of things. It empowers even the most idiotic Members to make our laws. It properly balances the filibuster in the Senate, without which all of democracy would crumble. Our nation is in desperate need of this reform. It is time for both sides to put down their parliamentary nuclear weapons and instead come together in peace to embrace the unfilibuster.

1. A majority is required to form a quorum in order to conduct business, pursuant to Article I, section 5, clause 1. But absent from that clause is any indication of the proportion needed to pass bills. Its silence on this question speaks volumes. ↩︎
2. Some scholars have suggested, obliquely, that section XLMCII of Jefferson’s Manual does not exist and that, furthermore, XLMCII is not even a valid Roman numeral. Such jiggery-pokery is of course pure applesauce and the best course is simply not to engage with it. ↩︎
3. In full disclosure, it should be acknowledged that the authenticity of this quote has been disputed. There is no specific evidence that James Madison said anything like this, but by the same token, there is no specific evidence that he didn’t. You, gentle reader, are the only source of truth. ↩︎

Process as Substance

Much has been written about House dysfunction, and there is no shortage of reform ideas.  Floor procedure reform, Rules Committee reform, congressional capacity reforms, budget reforms, committee jurisdiction reforms, you name it.  But the one area that has not been developed is the reform process itself.  How could these reforms actually be enacted by the House?

The usual answer is to deny that issues of process are in any way important or consequential.  The process is simply a matter of bringing the requisite resolution to the floor of the House for a vote. These procedures already exist and do not present any real barrier.  The only barrier is the political will to make these reforms happen.  Once the necessary coalition is built to support a particular reform proposal, it can be brought to the floor. The House is a majoritarian institution, so all you need is to gather that majority.  The problem is one of power, not process.

But I would argue that process is absolutely critical – and those who are serious about reform first need to sketch out how to get from point A to point B.  Process precedes substance.  So I would propose that Members step back and address the prerequisite stage to enacting wide-ranging reform; namely, developing the process by which a new select committee could successfully undertake these efforts.

The Perils of Proceeding Without Process

The fate of the House’s late Select Committee on the Modernization of Congress is, I think, instructive.  In constituting said committee, there was no actual process laid out for how you get from drafting reform ideas to voting on the House floor.  The committee itself had some rules it had to follow in developing these ideas, including committee vote thresholds for making specific recommendations.¹  But there the process ended.  The committee had zero legislative jurisdiction. There was no mechanism to convert its ideas into floor votes. 

The only process was the highly irregular order that we’ve all become accustomed to: House leadership, working through the Rules Committee, decides what comes to the floor.  As such, they were in a position, procedurally, to block any reform efforts that didn’t meet their approval.  Tinkering at the edges?  Sure, a few technology reforms and good government efficiency measures do no harm (and many of those only require changing, say, policies in the Clerk’s office, not floor votes).  But fundamentally reorganizing the House to redistribute power in unforeseen ways? There was absolutely no path for such proposals, no doubt by design.

Reforming the House is not a small task. It is long overdue (moderate reforms were achieved 30 years ago; arguably the last major reorganization was in the 1970s). So tinkering at the edges will not suffice. The list of dysfunctional areas runs the gamut, from appropriations and budgeting, to committee realignments, to Members’ schedules, and even the nature of floor debate itself. These are all heavy lifts, and so the path toward their enactment must be made as clear as possible.

And in charting the course forward, a new Modernization Select Committee could also embody the principles of free and open debate that current congressional dysfunction impedes. In effect, a new Modernization Select Committee could itself serve as a proof-of-concept for fair, transparent, and efficient processes

Clearing a Path Forward

There is no denying that the House, as it is currently organized, is an incredibly top-down institution.  Indeed, many reform efforts acknowledge the necessity for some amount of decentralization in the final product – whether it’s by empowering committees, disempowering the Speaker, reforming the Rules Committee, or other mechanisms.  But the upshot is that any reform effort (decentralizing or not) must first sketch out a path that avoids interference by those with the institutional power to throw up roadblocks: the Speaker, the Rules Committee, the leaderships of both parties, committee chairs, etc.  Funneling reform efforts through the usual channels will inevitably find that those channels have been blocked up.  New channels must be created.

Procedurally, this is not difficult to do.  Select committees in the House have the powers that the House chooses to give them.  There is nothing preventing the House from establishing a select committee that has Rules Committee-like powers to bring resolutions directly to the floor of the House.  This is the single most important procedural guarantee that could be given to a committee, and obviously it is a closely-guarded prerogative.  Nevertheless, reformers must insist on it.  It’s the only way to ensure that real reforms are given a fair hearing.  There must be no silent vetoes from those at the top.

The Right People

Another way to stymie reform efforts is to stack the select committee with those opposed to reform.  Thus, the selection process for committee membership becomes crucial.  Again, the former Modernization Select Committee provides a useful warning.  Consistent with tradition, the Speaker made all of the selections for the select committee slots, subject to a few requirements designed to bring in perspectives from certain other committees (such as House Administration) and newer Members.  The result is that the Members essentially served at the pleasure of the Speaker, and were thus unlikely to make any recommendations that might jeopardize House leadership’s hold on the agenda.  I doubt they were told explicitly not to rock the boat, but they didn’t have to be.  

A new select committee cannot be subject to the Speaker’s domination in this way.  Its membership should represent the House writ large, independent of the Speaker or the leaderships of either party.²  Its purpose is to make recommendations to the full House, not to make recommendations for the Speaker to implement or ignore as they see fit.  
There are any number of neutral methods for selecting the members of this new select committee that guarantee its independence from other power structures in the House.  Members could be selected similar to how Speakers are chosen – with nominating speeches and votes by the entire House.  Different classes of Members, from freshmen to backbenchers, could elect representatives to serve on the committee.  Even a completely randomized lottery system would produce a group of Members with no predetermined biases or outside pressures.  However Members are selected, so long as their appointment does not depend on the goodwill of powerful people in the House, they can focus on producing reforms that are beneficial for all.

Transparency and Accountability

Part of the process of getting from A to B is building in backstops and failsafes.  We can hope that the committee members are serious about reform, are independent, and diligent, and thoughtful.  We can hope that they will act in good faith – proposing realistic solutions to genuine problems.  But we must admit that there is no way to guarantee this absolutely.  The best we can do is ensure that the internal committee processes are designed to promote thoughtful deliberation and expose bad faith attempts to derail reform.

Again, these goals can be achieved simply by writing good rules into the committee’s charter.  The charter can spell out the topics that the committee needs to address.  It can mandate particular kinds of studies or research.³  It can go so far as to require open hearings and meetings on a set schedule, moving down a pre-defined “to do” list of reform items.  In short, the House does not need to hand unlimited, unchecked power to this new committee.  It can instead set specific expectations about what is to be accomplished and along what timeline.  It doesn’t have to specify every nitty gritty detail, but it can, fundamentally, define the project and lay out the process for completing it.

Fairness and Deliberation

Another backstop can be built into the process at the level of final floor deliberations.  Whatever we might think of the Members on the committee and the reform proposals they are able to put together, it still remains the case that, until the proposals are actually on the floor, the House as a whole has not had an opportunity to examine and digest the recommendations.  That’s why it is crucial for floor debate to be as free, open, and thorough as possible.  These are, after all, proposals to fundamentally alter how the House conducts its business.  The entire House needs to be brought into that process.

Again, this is procedurally easy just by writing into the committee’s charter specific rules for bringing its proposals to the floor.  The House can give it Rules Committee-like powers to report special orders of business, but it can also specify the exact contours of those special orders, laying out in advance the debate time and amendment opportunities that will be available to every Member of the House.⁴ Again, these processes can be used as a kind of proof-of-concept for more open, robust debate on the House floor generally.  Guaranteed amendment opportunities for all Members would foster a sense of inclusion and agency.  In short, the process could be structured to make the final product the result of real deliberations involving the entire membership, rather than a single take-it-or-leave-it plan imposed from on high.⁵

Iterative Reform

Finally, it should be acknowledged that a new Modernization Select Committee is unlikely to get everything right the first time, nor will the House when it goes to review and amend the committee’s work. These reforms are complex and may have unforeseen consequences. Instituting one set of reforms without a plan for evaluating their efficacy and making necessary adjustments only invites further (new) dysfunction. The key point is that these reforms are best undertaken iteratively – Congress-by-Congress – with ongoing observation to assess whether the reforms are achieving their intended purposes.

For this reason, I would suggest that this new Modernization Select Committee be embedded directly in the House rules as the Permanent Select Committee on the Modernization of Congress.⁶ The mission of such a committee would be the same, Congress to Congress: to review House rules and operations, and to recommend necessary changes. Obviously the first Congress in which such committee exists would have the toughest job, proposing a long-delayed, far-reaching, and thorough reorganization of the House. But rather than disband the committee after making such a proposal, the committee would be automatically reconstituted in the next Congress, with the task of monitoring how the reforms are faring in practice. Such a system would prevent procedural dysfunction from metastasizing into unalterable practice. A permanent select committee would give the House the freedom to make necessary course corrections at any time.

A Suggestion

A modest proposal: let the freshmen do it.

Every Congress sees around 50-100 new Members elected to the House. A bipartisan group of, say, 12 of them would be well-positioned to take this initial step towards real reform in the House. As first-year Members, they would be insulated from all prior notions of how the House can or should work. Their task would be simple: devise fair rules for the new Modernization Select Committee to play by.

These freshmen would not be serving on the committee itself and they do not need any specialized knowledge of different reform proposals. Instead, their mandate would be to create a process to study those reforms, deliberate over them, devise recommendations, and bring them to the floor of the House. They would certainly need to consult with other Members, procedural experts, and good government groups who have been studying various reform proposals. But their biggest asset is, perhaps ironically, their inexperience. They would not be weighed down by previous attempts at reform or prior ideas of what reform should look like. They would simply be looking at the process for considering those reforms.

The analysis above lays out the areas that these first-year Members should address in forming a new Permanent Select Committee on the Modernization of Congress. Access to the floor, membership rules to guarantee independence, internal rules of deliberation, etc.- these are all key choices that can and should be geared towards thorough and fair debate. They can avoid the pitfalls of earlier reform attempts by focusing on the process of getting from point A to point B. They can establish the benchmarks by which the House will know whether progress is being made.

And first-year Members have the most incentive to get this right. Members come to the House and are immediately told “This is how the system works.” But these freshmen would instead be tasked with considering the question, “How do you want the system to work?” What procedures are fair? What procedures encourage good faith deliberations? What procedures will give Members a sense of efficacy and agency? In short, what is a good process? These are questions that even new Members (perhaps especially new Members) can and should be working on.

Let’s get them started on it.

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1. For example, there was a supermajority vote requirement for formally approving recommendations to the House. While in theory this was intended to foster bipartisan proposals, the reality is that it put a veto in the hands of those opposed to (or at least less interested in) reform. ↩︎
2. Issues of funding also relate to this notion of independence. The committee must not only be populated with people willing and able to do the work but also be funded sufficiently to carry out its task. Staffing is just as important as the membership, in terms of guaranteeing independent action. ↩︎
3. For example, there is much to be learned from the procedures that govern state legislatures and international parliamentary bodies. The committee’s charter could include instructions to undertake this kind of comparative research in order to devise a set of parliamentary best practices that could be applied to the House. ↩︎
4. Developing the parameters of debate and amendment processes would provide an excellent opportunity to grapple with the proper bounds of deliberation in the modern House. A balance must always be struck between free and open debate and legislative efficiency. The process by which reform is debated on the House floor would provide a useful test case – one with no particular partisan or political implications. ↩︎
5. There is certainly a risk that deliberations break down on the floor, and that the final product is a mish-mash of conflicting ideas and values. But this is a fundamental risk of any representative assembly. Just as with regular legislation, we have to trust that Members can go through a deliberative process and come out with, if not the best policy (according to whatever metric), at least a coherent one. ↩︎
6. The House already acknowledges the existence of special, permanent select committees. The most famous example is the Permanent Select Committee on Intelligence (renewed automatically every Congress since the 1970s), which has its own special procedures embedded directly in the House rules. ↩︎

(A freshman Senator and an old backbencher are in the back of the Senate, discussing how to bring up a bill under the Senate’s obscure, arcane, and oblate procedures….)

“And then I can bring up the bill….??”

“No no no, it hasn’t ripened yet. You can’t [eyes bulging] rush….these things.”

“So how long do we have to wait?”

“Well technically 172 hours but any Senator can request The Dance.”

“Wait what-the Dance? What the hell’s the Dance?”

“The 172 hours can be shortened to 6 minutes IF the Majority Leader files the necessary paperwork to request permission to dance, then a pro forma vote on whether the Senate “shall seee hym Danse” (party line, nothing to worry about), yadda yadda, and then finally the Dance itself.”

“Wh-what who dances?”

“Technically any Senator but by centuries-long tradition, practically speaking, it would be the Majority Leader.”

“How does he dance?”

“I mean, he hops about a bit, nothing much to it. It’s vaguely silly that’s all. Beyond three minutes is not required and the precedents say ending as close to three as possible is the preferred form.”

“And if he just does that then my bill comes up? Seems easy enough.”

“I mean, yes technically, but again, no Majority Leader has danced the Senate Dance since the Civil War. And no Senator in their right mind would demand it, unless they were particularly incensed or if it was something truly crazy like a civil rights bill.”

“So how do I get my bill on the floor?? I have to wait 172 hours?? There’s no way around it??”

“Of course there’s a way around it. Senators do not want this thing, whatever it is, to eat up 172 hours of their time. So they simply file a Demon Motion.”

“What the hell is a Demon Motion?”

“Pretty simple: a Demon Motion deems the dance as having occurred “tho’ it hath not in fact occurred.”  The 172 hours are reduced to 6 minutes, no actual dance is required.

“Ok, great, so now my bill can come up?”

“Well, although the Demon Motion itself requires only a simple majority, it is subject to a Loop Resolution if any Senator offers one.”

“A Loop Resolution?”

“Yes, a Loop Resolution loops you back to the beginning of the process. Remember the 27 steps we went over yesterday? A successful Loop Resolution would take you back to Step 1.”

“Dear God….”

“Well, technically Step 6 but practically Step 4. The first three steps are ignored the second time around, no one knows why. But it all makes sense, in a way. It’s a chance for the Senate to say, collectively, hang on a minute, I wasn’t paying attention, can we go back to the beginning? And obviously with a quite elderly assembly, the utility of such resolutions is not to be discounted. And quite naturally it takes unanimous consent to waive a Loop Resolution, otherwise there’d be no point in having it. But you need not fear, Loop Resolutions are always, always waived.”

“OK, well, that’s a relief. So now my bill can come up?”

“Well yes but obviously not in the form you originally proposed. In exchange for supporting the Demon Motion and (more importantly) granting unanimous consent to waive the Loop Resolution, the minority will demand, traditionally, that you drop a little more than half of it.”

“More than half??”

“I mean, honestly, if even little bits and pieces of your bill survive the negotiations, you should take that as a big win.  Look, do you want the minority to waive the Loop Resolution or not? Because without that, the whole process never gets off the ground. It’s all quite straightforward.”

“Fine fine, if this is what it takes, to get my whole bill on the floor, and fight for what I believe, and fight for what my constituents deserve, I will do the Senate Dance myself!”

“Keep your voice down! For gods sake don’t offer to do the dance yourself, and never, ever suggest publicly that you will. It is an absolutely demeaning spectacle, you’d be tearing up centuries of tradition, bring disrepute upon the Senate…have you no love of the institution man!??”

“I don’t care, I’m doing the dance.”

“If you care nothing for the hallowed Senate, think of your own standing within the party. There are perfectly logical electoral reasons why rank-and-file Senators do not challenge the Majority Leader’s right to dance. It would be basically like stabbing your own party in the back, and that’s how it would be perceived. At minimum fundraising would dry up and I doubt if any other Senators would even bother taking your calls. You’d become a pariah. It’s career suicide, plain and simple.”

“Why don’t we just get rid of the Dance? It all seems so pointless.”

“Well that’s the modern Senate for you.  Of course back in the day, the Dance functioned quite differently.”

“How do you mean?”

“Those three minutes! Ah, the way that Senators back then would pack the most incredibly artistic, acrobatic dance moves into that short a period of time!   Some of the choreography of the earlier Senate Majority Leaders was apparently something to behold (though of course no recordings exist of those). That’s why I could never agree to getting rid of The Dance. It would be erasing all that wonderful history!”

“But I thought the Dance was a demeaning spectacle whose purpose is to goad the Senators into a bipartisan compromise in order to avoid the Dance.”

“Quite so, in modern practice. It’s funny really, it really has come full circle. What began as simple mockery of Irish immigrants grew into a true art form that any civilized man could appreciate. A way to celebrate the end of debate on vital legislation!  Now, alas, it is a relic of a bygone age, despised and discarded.  Senators no longer….[weeping]….dance…..”

“Oh damn it all- I will dance! I will study those early Majority Leaders and I will dance the best dance that the Senate has ever seen! And then every word of my bill is coming to the floor, I don’t care about the consequences.”

“Ah, that’s rather unfortunate because I neglected to tell you, I mean, I didn’t think it would get this far but, technically, under the Senate’s decorum rules, it is, technically (though quite formally)…forbidden to dance.”

“What???”

“Obviously this is an untested part of the rules because no one has ever tried to dance since this particular rule was invented, but under Rule XXLVIXLLV, subparagraph b, clause 9, it is absolutely forbidden to dance on the floor of the Senate. It’s a bit of an unintended consequence that no Senator actually meant to happen, but the rules are the rules, and obviously it’d be foolish to change them just for our own convenience.”

“So if I tried…”

“The Sergeant-at-Arms would step forward and arrest you, administer the three customary lashes with the Senate Whip, and take you to the Senate Jail and/or Willards Hotel where you will be kept until the end of the session.”

“I’ll be imprisoned??”

“Of course not, you’ll be free to come and go but you will obviously be barred from the Senate, the Senate parking garage and botanical gardens, and, indeed, historically, the entire Capitol Grounds.”

“Wouldn’t that deprive my constituents of their vote in Congress?”

“You could very well believe that, and I do think that the arguments on the other side are, strictly speaking, better, but since the Supreme Court’s ruling in US v In Re Sixteen Drums of Purified Whale Oil (1845), it’s all rather academic, no?”

 “Oh god, being a Senator is the worst! Why can’t I just be President??”

“There is one way I know that might be able to get your bill on the floor…….”

[ears perk up] “There is??”

“There is.  But before we go down this road, how comfortable are you with ….
…..cocaine-fueled orgies?”

—both mug to the audience—

—curtain descends—

Does the Filibuster Protect Minority Rights?

A common argument from filibuster defenders is that the filibuster is a necessary procedure to protect “minority rights” in the Senate. Without the filibuster, the Senate would be just another majoritarian body, no different from the House. The filibuster thus preserves the Senate’s particular solicitude for the interests of the minority.

I’ve always found this a curious position because the filibuster does not, in and of itself, provide any particular procedural guarantees, so it is unclear what precise parliamentary rights are being protected. The most potent procedural right a minority has in a legislative assembly is the right to cause a vote on something that perhaps the majority doesn’t want to vote on. This could be in the area of agenda-setting (i.e. suggesting that, instead of the majority’s bill, a different bill should be prioritized) or consideration (i.e. instead of the bill in the form that majority would prefer, the bill should be amended in various ways). There is zero connection between the filibuster and either of these procedural rights. Procedurally, you cannot get a vote on your amendment or your bill just by engaging in a filibuster.

The best argument is that a talking filibuster preserves the minority’s right to speak – to debate, to deliberate, to have their (literal) voice heard. This does appear to be a good justification for some form of filibuster, as a way to guarantee that the majority cannot rush through legislation without having to hear opponents of the bill give their arguments for why the bill should not pass. But even with this justification in mind, we must ask ourselves: does the minority’s right to debate extend all the way to a right to unlimited debate?

At one end of the spectrum, we have a ruthless majoritarian system where the majority moves to end debate immediately, without giving the minority sufficient (or perhaps any) opportunity to make their case against the bill. At the other end of the spectrum, I’d argue we have a ruthless minoritarian system, where the majority is unable to end debate at all and the minority is able to defeat the bill not by persuasive arguments but by running out the clock. If we are interested in the minority’s right to speak (and not the minority’s “right” to defeat legislation), then surely we must look for a parliamentary mechanism that gets us somewhere in between these two extremes. The minority has a right to “sufficient” debate (however that might be defined), but it does not have a right to unlimited debate, any more than the majority has a right to prevent all debate.

And while the abstract case may be interesting, we must also acknowledge that it does not reflect reality. The filibuster as currently practiced operates as a simple minority veto – a cloture vote that can succeed only with the concurrence of the minority. Senators just don’t talk anymore. Thus, the whole notion that the filibuster protects the right of Senators to speak is (in actual practice) entirely illusory. If “debate” is the basis for your defense of the filibuster, at minimum you must insist on a return to actual talking filibusters.

Procedural Hostage-Taking

The rejoinder to these points is typically to assert that the filibuster’s utility lies not in its procedural niceties per se but in its political effect. The minority can in fact get sufficient debate time and votes on their amendments by using the filibuster – if they’re willing to engage in a bit of legislative hostage-taking. The trade is as follows: the minority agrees to refrain from filibustering the bill if the majority is willing to give them sufficient debate time and votes on their amendments. Thus, the procedural rights of the minority are protected via the mere threat of using the filibuster.

Again, I find this move less than convincing because it presents such an unrealistic view of how these negotiations work. However the filibuster may have been used in the past, it is currently exercised as a simple minority veto, and as a result, the minority holds all the cards in these negotiations. They might, I suppose, pursue a very noble and generous path and demand only that the majority bring up its bill under procedures that the let the minority debate it and offer amendments to it – acknowledging the possibility that the speeches will fall on deaf ears and that the majority will simply vote down all of their amendments.

But why accept this fate? The minority holds a veto – if they don’t vote in favor of cloture, the bill is dead. Why facilitate the passage of a bill you oppose when you have the power to defeat it? The veto allows you to demand more than mere procedural rights. It allows you to demand concrete changes to the bill. It allows you to not only have a vote on your amendment, but to have that amendment incorporated into the bill. Indeed, the filibuster gives you the power to demand that all of your amendments be incorporated into the bill. Either the bill passes in a form acceptable to the minority, or it doesn’t pass at all.

Substance vs. Procedure

At this stage, filibuster proponents often simply give up the pretense that they are interested in minority procedural rights at all, and shift to a different argument: that the minority has a right to see its ideas enacted into law. Thus, the filibuster is not really a mechanism for ensuring that the parliamentary rights of the minority are protected. Rather, it is a mechanism for ensuring that no bill can pass unless it is a bipartisan compromise text containing both ideas favored by the majority and ideas favored by the minority. The filibuster is not about procedure; it is about substance.

As a response, I’d start by pointing out that the two positions (procedural protections vs substantive outcomes) are in tension with one another, so filibuster defenders should really choose between one or the other. If what matters is procedural rights (to debate and offer amendments), then a partisan bill that succeeds in getting through the gauntlet of minority speeches and amendments is as a good as a bipartisan bill where many minority amendments made it into the final text. But if what matters is that the bills all be bipartisan compromises, then any procedure that will get you there (even one with no debate and zero amendment opportunities) is acceptable.

(As a small digression, I’ll just note that when the filibuster “works” these days, and the Senate does agree to a bipartisan compromise deal, it typically does so with none of the procedural guarantees for minority rights that filibuster supporters claim are important. Instead, the leaderships of the two parties (or perhaps a “gang”) will go off in secret, draft legislative text in secret, come to an agreement on that text in secret, and bring that text to the floor for a little parliamentary charade. Debate time will be strictly constrained and the bill subject to perhaps a few “destined to fail” amendments that no one finds particularly controversial. In short, once a bipartisan supermajority is formed, procedural rights for all Senators essentially vanish and the bill goes through far quicker than even in the majoritarian House.)

I feel that filibuster supporters are on firmer ground when they are arguing for procedural rights, because the filibuster is fundamentally a procedural mechanism. And procedural mechanisms cannot and should not be used as a method of ensuring particular substantive outcomes. The point of a parliamentary body is to debate and deliberate – to discuss ideas, vote on them, and in the process craft legislative text. Procedural rules should be geared towards facilitating that process, not preventing the passage of bills that do not have a specific substantive character.

But even accepting the argument that substantive outcomes are more important that procedural nuances (parliamentary rights of the membership be damned), I think one has to acknowledge the filibuster’s deficiencies in actually providing those substantive outcomes. As noted, a minority veto allows the minority to demand anything it wants. The majority has no recourse but to accept the minority’s demands – it’s either the bill as the minority would like it, or no bill at all. We can certainly imagine a very noble and generous minority that demands only that the majority’s highly partisan bill be replaced with a broadly-acceptable bipartisan compromise where everyone gets half a loaf. But we can also imagine a more realistic scenario where the minority demands complete surrender, the majority rejects the outlandish demand, and the bill goes nowhere. And, as the output of the Senate for the last 20ish years demonstrates, this is precisely what occurs. If the filibuster were an effective mechanism for ensuring bipartisan compromise bills, then we would see a starkly different record of Senate productivity.¹

The reason for this failure is the hopefully self-evident notion that you cannot force people to compromise through procedural mechanisms alone. You cannot really even incentivize or encourage it. In a majoritarian system, the majority arguably has no incentive to compromise because it has the votes to defeat anything the minority offers (and, conversely, the minority is incentivized to compromise for precisely the same reason). The filibuster “solves” this problem by giving the minority a veto. Now the majority is incentivized to compromise, because otherwise the minority will veto its bill. But observe how this parliamentary whack-a-mole has played out: now the minority has no incentivize to compromise because it has the votes to defeat anything the majority offers. We’re back to square one.

In fact, I’d argue we’re back to square zero because, as Speaker Reed famously pointed out, the tyranny of the minority is worse than the tyranny of the majority. A majority that defeats every minority amendment and passes partisan legislation without any minority ideas at least has an electoral mandate to do so. If the public wanted more minority party ideas enacted into law, they would vote to make that party the majority instead. They didn’t, so it’s the actual majority party whose ideas get enacted into law. The minority party’s ideas have no similar claim to electoral sanction.

Furthermore, a majoritarian system has the not insignificant advantage of actually producing outcomes. Under the Senate’s tyranny of the minority, the filibuster attempts to force the two sides to compromise by essentially telling them, “Either you come to an agreement, or nothing will get done!” This threat may work, but it may not. If Senators prefer the status quo over any change, there is absolutely no reason to accept a compromise. Or Senators may simply prefer that nothing gets done if the alternative is a lot of hard work and tough votes. And the record clearly indicates that Senators more often choose “nothing” over “something”.

Denial and Deflection

So if the filibuster is not about protecting minority rights and is woefully deficient in producing the substantive compromises that we’ve now deemed even more important, what is it about? Typically, filibuster supporters at this juncture give up on the idea that rules and procedures and parliamentary rights have much of an impact on anything. What really matters is that the Senators themselves be willing to compromise. Without this prerequisite, nothing is possible and the system of rules that these Senators operate in is basically irrelevant. This is the “It’s not the rules, it’s the Senators” position.

At this point we’re about as far away from procedure as we can get. We’re tiptoeing up to the strange inverted world of, “Government in the Senate is unnecessary as long as we simply elect angels”. The only phase after this is to decry democracy itself. For who it is that’s electing all these stubborn, uncompromising Senators? It’s those dumb voters! Not much point debating the niceties of congressional rulemaking when it turns out representative democracy doesn’t actually work.

The other equally-unsatisfying move is to claim that the dysfunction and lack of productivity we see in the Senate is actually evidence that the filibuster is working as intended. Senators are bound to disagree, and the procedural rules of the Senate should, if anything, exacerbate these disagreements in order to make it extremely difficult for the Senate to agree on anything. We need the highest thresholds for agreement because the Founders thought that government was dangerous, so the more procedural roadblocks you can erect in the Senate, the better. Dysfunction is not a bug, it’s a feature.

My only response to this is to say that the Founders were not idiots. They didn’t bequeath us a car with no wheels because they didn’t think we’d be responsible enough to drive. They envisioned a functioning system, where governmental powers are exercised responsibly. They did not design a purposefully dysfunctional system, where governmental power cannot be exercised. I take it as a self-evident truth that the Senate should have good parliamentary rules that make good outcomes more likely. I’m not much interested in juvenile theories of why we need bad rules and bad outcomes.

An Alternative Approach: Open Rules

There is a procedure in the House known as an “open rule” that presents an interesting contrast with the filibuster because it would seem to actually provide all the benefits that the filibuster only pretends to.

Under an open rule, a bill is brought to the floor for what is essentially a committee markup – a section-by-section reading of the bill from start to finish, with Members permitted to offer amendments to each section as it is read. Amendments are typically debated for ten minutes each (5 for the proponent, 5 for an opponent), and after the reading is complete, the House moves to a final vote on the bill.

As should be evident even from this cursory description, an open rule is very effective at actually preserving minority rights in the House. The minority is permitted to offer whatever amendments it wants, to any part of the bill. There is no limit to the number of amendments that can be offered. Although theoretically debate on each amendment is short and constrained, the House authorizes “pro forma” amendments (fake amendments proposing a notional change, such as “striking the last word”) by which any Member can speak on any amendment for 5 minutes. With no limit on the number of amendments (and the ability to offer second-degree amendments as well), debate can extend indefinitely.

An open rule is superior to the filibuster in preserving parliamentary rights because the procedure itself is directly connected to those rights. The open rule itself provides the mechanism by which the bill is read for amendment. The open rule itself provides the debate time and the amendment opportunities. It doesn’t rely on hostage-taking or other political mechanisms designed to “force” the Members to agree to a thorough and deliberative process. It simply states, “For this bill, there will be the following thorough and deliberative process.” Easy as that.

Critics point out two fundamental problems with open rules, each of which points in a different dysfunctional direction. The first is the problem (ironically?) of filibustering. With no limit on the number of amendments, and (with pro forma amendments available) no limit on debate time, the bill’s opponents could theoretically drag out the proceedings indefinitely. The minority could offer hundreds upon hundreds of bad faith amendments, poison pills, “gotcha” amendments, and other unserious proposals, designed not to improve the bill or bring it closer to a point where the minority could support it, but simply to wear down the majority. The minority could offer a thousand pro forma amendments, not in order to persuade the majority of the bill’s flaws but simply to waste time and obstruct. The majority may eventually consider it a better use of time to simply give up on that bill and move on to something else.

The second problem is the inverse of the first, because even under an open rule, the majority does have procedural tools to close debate. The motion to close debate is essentially a majority-vote cloture motion that can be applied to any amendment or the bill itself. Aggressive use of this motion could be used to silence the minority and cut off amendment opportunities.² And although we can debate the extent to which substantive outcomes should concern us, an open rule is ultimately majoritarian. Even if the majority allows full and unfettered debate, it has the numbers to simply vote down every minority amendment and pass a partisan bill with zero minority party ideas. Again, I would question whether this is in fact a problem or simply how things ought to be in a representative democracy, but it is absolutely true that nothing prevents partisan legislation under open rules.

So in one sense an open rule is both too majoritarian (the majority party can attempt to restrict debate and force through a partisan outcome) and too prone to abuse by the minority (the minority party can drag things out with either speeches or amendments or both). But therein lies the genius of the open rule: the two flaws operate against one another to produce precisely the circumstances for bargaining and compromise that filibuster supporters say they want.

The key fact about an open rule is that it lets the trajectory for each bill play out organically. Neither side knows in advance how the other will play its cards. Is this a bill that the minority strongly opposes and will therefore expend great energy trying to defeat? Is it a bill that the majority wants to shield from scrutiny and “uncomfortable” votes, and will it therefore aggressively try to curtail debate? The answers to these questions will depend greatly on the circumstances. Different types of bills will engender different responses.

Unlike the filibuster, an open rule actually does measure the intensity of Members’ feelings towards the bill at issue. As currently practiced, the filibuster/cloture mechanism is effortless on both sides: filing cloture is essentially a bit of paperwork for the majority, and defeating a cloture vote is just a matter of voting “nay”. A bill coming up under a open rule, however, is a different story entirely. For the minority to defeat it via obstruction and dilatory tactics alone, they would have to draft countless amendments, be on the floor at the appropriate time to offer them, spend time to debate them, etc. With 200+ Members in your caucus, such filibustering may not be particularly grueling on any one Member, but it nevertheless take energy and diligence and coordination to see it through. To make that same effort on every single bill, day in and day out, is simply beyond the ability of any minority party. They would have to choose their battles.

On the flipside, the majority party cannot be too heavy-handed in its treatment of the minority under a regime of open rules, because there are so many opportunities for dilatory action. The majority will, of course, be on the lookout for any method to speed up the deliberations and move to final votes quicker. But the tighter they restrict the minority and cut it out of the process (i.e. moving to close debate too early), the more the minority will protest by dragging things out further – if not on this bill, then perhaps the next one.³ There will always be a see-saw battle, with each side putting maximum effort into the areas they feels strongest about, and letting the other side achieve partial victories in areas that matter less.

Which is precisely the scenario that filibuster defenders say is essential for creating the conditions for negotiation and compromise. The minority knows that it doesn’t have the numbers to defeat the bill; they can only slow it down – if they make the effort. The majority knows that it can’t push a purely partisan bill through – unless they are willing to make the effort to withstand the minority’s obstruction. The potential for dealmaking arises naturally from such observations. If the minority refrains from all-out legislative guerilla war, it can perhaps persuade the majority to agree to a compromise version of the bill instead of a partisan one. And if the majority agrees to incorporate some the minority’s ideas into the bill, it can perhaps get the minority to back down from its filibustering threats and smooth the way to final passage.

If you make maximalists tactics costly for both sides, the road to a middle-ground compromise becomes the path of least resistance.

Conclusions

Filibuster defenders aren’t wrong about what we should value in a legislative assembly. A robust deliberative process is important. The rights of the minority are worth protecting. The majority should not be allowed to ram through partisan legislation without sufficient debate. And, all things being equal, bills that pass with large bipartisan majorities are probably preferable to partisan bills that squeak through with a bare majority. But they are wrong in thinking that the filibuster is helpful in advancing any of these values.

Instead, the filibuster as currently practiced prevents a robust deliberative process. Bills die because the motion to proceed to their consideration fails. The filibuster does not protect the minority’s right to speak or to amend – it has no connection to the latter, and Senators can and do voluntarily choose not to exercise their rights to the former. When bipartisan deals are forged, parliamentary rights of the body are jettisoned in favor of quick votes. If the filibuster ensured or even just encouraged wide-ranging debate and minority participation in the process, we would see a very active Senate floor and a string of bipartisan success stories. Instead we see exactly the opposite: a moribund chamber where no real legislating occurs.

Open rules provide an instructive lesson on how procedural rules could be used effectively to achieve the goals that the filibuster’s proponents claim are important. They do so by guaranteeing procedural rights, rather than leaving such rights to be negotiated by the parties. They do not try to “force” compromise by giving all sides parliamentary nuclear weapons and feebly hoping that some sense of mutually-assured destruction will avoid catastrophe. Open rules don’t rely on procedural hostage-taking or other gimmicks. They provide an open, transparent forum for Members to debate their ideas and vote on them. And that, fundamentally, is what we should all want from Congress.

———————–

1. People sometimes point to the Senate’s record of passing bipartisan omnibus appropriations packages as evidence that the filibuster works, but there is no evidence for this. When the Senate finds itself up against a fiscal deadline, with shutdowns or defaults looming, then compromises do tend to get worked out, but only because both sides in such circumstances are incentivized to make a deal. The minority cannot filibuster because it will be blamed for the consequences, and the majority cannot be too heavy-handed because it will be blamed for not governing responsibly. Crucially, it is not the filibuster that provides the impetus for bargaining – it is the tight deadline and the “must pass” nature of the legislation at issue. The existence of the filibuster plays no role in the passage of such bills. ↩︎
2. The motion to close debate in the Committee of the Whole may end debate, but it does not actually prevent the offering of further amendments to the bill. In its most extreme case, the majority could move to close debate on the bill right at the start of the process – leading to a debate-less vote-a-rama situation for any amendments the minority wishes to offer. ↩︎
3. An open rule also has the advantage of being transparent. Bills “die” in the Senate when the Senate fails to invoke cloture (and the minority is rightly blamed for “blocking” the bill), but this obfuscates the fact that the majority is attempting to ram through a bill without the minority’s input (usually by filling the amendment tree and filing cloture before there’s been a single word of debate). By contrast, motions to close debate under an open rule are quite obviously mechanisms to restrict the deliberative process. It thus becomes quickly apparent to any observer whether the majority is allowing debate to proceed naturally or cutting things off prematurely. ↩︎

Original piece:

https://effectivegov.uchicago.edu/primers/filibuster-reform

Although this is a thorough and thoughtful primer on current issues surrounding the filibuster, I found it unsatisfying in a variety of ways (and quite misleading in some areas).  Overall, like many explications of the filibuster, it drifts seamlessly from descriptions of an abstract or historical filibuster (with certain attributes) to descriptions of the current practice of the filibuster (with completely different attributes).  Virtually all defenses of the filibuster come from the first category, although the author does frequently acknowledge that the identified benefits are not to be found in the modern filibuster.  I wish discussions like this could be more focused on how the filibuster actually currently operates, rather than spending time debating whether some non-existent filibuster is worth “preserving.”


Below I’ve picked out some quotes for specific responses:

“In contrast, friends of the filibuster argue that it provides political minorities a voice in an otherwise ruthlessly majoritarian legislative process. Or they contend that, by slowing the pace of lawmaking, Senators are incentivized to deliberate and find consensus.”

Let’s take apart these two claims made by filibuster proponents.  What does “providing a voice” mean in a legislative assembly?  I’d argue that it really only means two things: use of one’s actual voice (i.e. being given time on the floor of the chamber to discuss and debate legislation) and the ability to offer alternatives to the majority’s agenda (either in the form of alternate agenda proposals or amendments to bills brought up by the majority).  The filibuster provides neither of these things.  Theoretically, it could provide the first, if talking filibusters were being used.  But as the piece correctly notes from the outset, talking filibusters no longer exist.  The minority is therefore not provided this kind of “voice” via the filibuster.  Additionally, the filibuster does not of itself provide a procedural mechanism to suggest alternatives for bills or offer amendments to bills.  The most it can accomplish is hostage-taking to achieve these goals: the minority agrees not to filibuster in exchange for the ability to offer amendments.  But again, those sorts of trade-offs do not typically occur these days.  The minority would much rather veto a piece of legislation than offer amendments to it.  If you don’t want the train to get where it’s going, why merely slow it down when it can be stopped in its tracks? Failed cloture votes do not lead inexorably to negotiations to resolve the impasse – they lead to the bill being declared dead and the Senate moving on to other matters.

The second claim is that the filibuster slows the “pace” of lawmaking.  It does not.  As the piece points out, the filibuster today is exercised as a simple minority veto, where a failed cloture vote ends the matter and the Senate moves on to another item of business.  There is no slowing of the process – it comes to a complete (and abrupt) halt.  You can, of course, imagine a scenario where the majority is faced with a choice: either endure a long, laborious, painfully slow legislative process in order to pass a bill on a partisan basis, or negotiate with the minority to find a bipartisan compromise solution that can be passed quickly and efficiently.  In that scenario, you might indeed find the majority willing to bargain in order to save time and effort, and if we think that the majority making bargains with the minority is a good thing, then yes, the filibuster would be beneficial.  But the filibuster does not present the majority with this choice.  The filibuster tells the majority that there is no process by which it can get what it wants via partisan votes only, and therefore it must find agreement with the minority in order to move forward.  Some see this as a good thing – the majority cannot, under any circumstances, bypass the minority.  But the reality is that it simply flips the system from majoritarian to minoritarian without incentivizing anyone to deliberate or find consensus.  The minority is not incentivized to accept parts of the majority’s agenda, because it holds an absolute veto on that agenda.  If, again, this hypothetical filibuster existed where the minority could only slow down the “pace” of lawmaking, they might indeed be incentivized to bargain rather than obstruct, because they would know that their obstruction would have limits.  But the current filibuster has no limits.  It can be used to effortlessly block anything.  Thus, it provides no incentive to compromise.

“The filibuster protects minority rights. If a minority of senators prefer the status quo to a proposed change, they can use the filibuster to forestall action and potentially preserve their favored equilibrium.”

This bold assertion that the filibuster protects minority rights is, I think, simply incorrect.  What rights does the minority in a legislative assembly have?  Again, I’d argue that they should be given essentially two rights: the right to use their literal voice (i.e being given time on the floor of the chamber to discuss and debate legislation) and the right to offer alternatives to the majority’s agenda (either in the form of alternate agenda proposals or amendments to bills brought up by the majority).  As discussed above, the filibuster as currently practiced provides neither of these things.  Senators no longer use it to exercise their right to debate and deliberate, and it has never provided a direct procedural mechanism by which the minority could offer amendments or suggest that alternative bills be taken up.  Instead, the filibuster gives the minority a right it shouldn’t have: the right to veto legislation.  This is not typically a right granted to any minority in any legislature under any code of parliamentary procedure.  Supermajority vote requirements for ordinary legislative measures are basically unheard of – you won’t find it in state legislatures or foreign parliaments or Robert’s Rules or anywhere.  The rule from time immemorial is that the majority decides.  The ability to absolutely block legislation is not a minority right.  Period.

Furthermore, if the minority prefers the status quo to what the majority is offering, they can absolutely “preserve their favored equilibrium” – there’s no “potentially” about it.  Again, this piece continually describes the filibuster as if it were a mechanism by which the minority, using superhuman efforts, can slow the legislative process.  But it is not that.  It is an effortless veto and we should be clear about its attributes.

“For those who oppose the filibuster, sensitivity to minority interests is a problem. Majorities are elected with a mandate to govern and the minority party shouldn’t get to make that task more difficult. The Senate filibuster is an unnecessary obstacle to enacting policies that are popular with voters and central to the majority party’s agenda.”

I feel that this is a very uncharitable view of what filibuster opponents see as the problem.  Minority interests are never a problem in the abstract (the majority should not be allowed to steamroll the minority whenever it wants), but the procedural mechanisms by which such interests are accommodated in the chamber make a huge difference – and bad mechanisms can lead to dysfunction.  Again, the filibuster does not currently provide the minority with either debate time on the floor nor the ability to offer amendments/alternative agendas.  The proper way to be sensitive to minority interests is to provide these things.  The minority absolutely should have the ability to make the task of passing legislation “more difficult” for the majority.  And they should be allowed to do this via: debate (arguing against the majority’s proposals, pointing out its flaws, persuading other Senators to change their positions, etc.) and amendment (offering alternatives to what the majority is trying to do and forcing the majority to vote those alternatives down if they want to proceed).  

The filibuster as currently practiced doesn’t make it “more difficult” for the majority to pass its agenda on a partisan basis.  It makes it literally impossible.  It doesn’t slow legislation.  It stops it.  “Sensitivity” to minority interests does not require giving the minority a veto.  It is perfectly possible to be in favor of actual minority rights and also oppose the filibuster, and I think it’s disingenuous to suggest that filibuster opponents must not think minority rights are important or worth preserving.  In fact, it is the filibuster defenders who seem uninterested in articulating what actual minority rights in a legislature look like or how they can be protected.

“Filibustering conveys credible information to the Senate about how determined a senator is to maintain the status quo and/or the relative reward she derives from fighting.  After all, senators have lots of things to do other than filibuster, and so their choice to filibuster suggests they really care about the issue. But the less costly it is for any senator (or group of senators) to filibuster, the noisier the signal about the intensity of their opposition. If filibustering is cheap and easy, there is little to stop lawmakers from filibustering on issues they care only weakly about.”

Again, the piece begins with claims about some abstract filibuster that perhaps never existed and certainly doesn’t exist now, before acknowledging that the modern filibuster has none of these attributes and therefore none of the beneficial effects ascribed to them.  If the filibuster really did gauge intensity, then it might indeed be a useful mechanism for filtering legislation and setting the Senate’s agenda.  But because it is effortless, it cannot have this effect.  The working assumption of the Senate is that “bills need 60 votes”.  In other words, the minority will veto everything it disagrees with, regardless of intensity.  And the evidence shows that this is in fact what is happening.

“The filibuster serves senators’ reelection goals.”

The paragraph for this assertion describes the inarguable fact that when Senators engage in performative stunts (like reading Dr. Seuss for 5 hours), they get attention, and getting attention often has a beneficial impact on their election prospects.  While this certainly explains why Senators might want to preserve the filibuster, it is not a defense of the filibuster – unless you believe that facilitating performative stunts is an important function of parliamentary rules.  I would hope that we might all agree that the function of parliamentary rules should actually be the opposite- to discourage time-wasting stunts geared towards an individual Senator’s personal electoral advantage and instead encourage robust, meaningful deliberation on concrete legislative measures.

“As only fifty-one senators are needed to change the chamber rules that make filibustering possible, filibusterers operate with the tacit consent of the Senate majority.”

This statement elides the fact that those 51 Senators would have to “break the rules” in order to eliminate the filibuster, because under regular procedures, amendments to Senate rules require 67 Senators to vote for cloture.  So it is not simply a matter of the majority getting together and deciding to institute some filibuster reform.  They would have to “nuke” the rules (as has been done several times with respect to nominations) and face the criticism that they are executing an illegal end-run around the rules in order to destroy hallowed Senate traditions.  This is obviously harder for most Senators than directly voting to change the rules by simple majority.

Beyond that, the only thing that these paragraphs demonstrate is that the majority likes the filibuster as much as the minority, with the conclusion that the filibuster cannot be serving minority interests alone.  No doubt this is true, but I think it’s worth being explicit about which majority interests the filibuster is advancing.  Quite obviously, it is not about passing legislation and instituting the majority’s agenda – the filibuster prevents these things.  Instead, what the filibuster provides the majority is the ability to avoid responsibility for governing.  Senate majorities today tend to be quite diverse in terms of political goals and operate within thin margins.  It’s difficult to get 51 Senators to agree to anything, even if they are all of the same party.  Rather than face this difficulty head on, the majority can instead pretend it doesn’t exist and the filibuster is a key component of the charade.  The majority can promise any number of things, claim to be united on any given set of policies, and never have to do the work of actually putting together legislative text that they can all agree on.  Instead, they put together sham text that they know has no chance of overcoming a filibuster and count on the minority to veto it for them.  With no power comes no responsibility.  Majority Members are spared from having to take “tough votes” that might divide their caucus and reveal disunity.  This is the interest of the majority that the filibuster protects, and I’d argue that (like time-wasting showboating) it is a bad interest that the procedural rules of the chamber should not encourage.  The majority was elected to pursue and implement the platform it ran on.  The rules should not facilitate the avoidance of this responsibility through parliamentary sleight of hand.

“There is little evidence that filibuster reform would significantly improve the Senate’s productivity and responsiveness to public opinion.”

I have my doubts about this, but I don’t know how the author can make this claim when at the beginning of the piece, under “Important Questions that the Research Does Not Answer”, we find the question “Would the Senate really be more responsive or productive if the filibuster were eliminated (or its use sharply curtailed)?”  We simply don’t know.  But I’d argue that a dysfunctional Senate without the filibuster is still preferable to a dysfunctional Senate with the filibuster, and would have more of a tendency to incentivize a resolution of said dysfunction (more thoughts on that below).

“Political scientists have instead found that the most common reason majority parties fail to enact their agendas is internal disagreement.  Notwithstanding the possibility that polarization has encouraged Senate minorities to engage in obstruction, threats to filibuster do not account for a greater share of majority-party agenda failures in recent legislative sessions. The upshot is that reformers interested in increasing the Senate’s productivity might be better served finding other targets.”

I would argue that all current voting behavior in the Senate occurs in the established context that the minority exercises an absolute veto on anything the majority puts on the floor.  We simply don’t know how Senators would behave if this context changed.  With the filibuster in place, the majority party is relieved of the responsibility of coming together to find legislative text that a majority of Senators can agree on.  There’s every reason to think this encourages Senators to stake out maximalist positions and not compromise.  If the give-and-take of bargaining (where a Senator may gain some things and lose others) cannot actually lead to the passage of legislation, why give up anything?  Why not remain pure and true to your principles?  Half a loaf is not possible because the filibuster prevents anyone from getting any loaves at all – so why bother signaling that you are willing to accept half a loaf?  Surely it would be easier to say that you fought for the whole loaf and if it weren’t for that darned filibuster, you, my valued constituents, would have that entire loaf right now.

I think it’s also important to imagine how the two different types of dysfunction look to outsiders.  Under current practice, it’s “the Senate” that bears responsibility for the dysfunction.  People seem to agree that some combination of arcane Senate rules, minority obstruction, and a general unwillingness to compromise results in the Senate not being able to achieve much of anything.  If the filibuster were eliminated and the Senate were a majoritarian body like the House, the responsibility for any dysfunction would lie with the majority.  A dysfunctional filibuster-less Senate where bills are constantly being brought up and failing to get simple majorities looks very different from a dysfunctional filibuster-ful Senate where majorities vote all the time in favor of bills that are nevertheless “defeated”.  In the former case, there would be intense pressure for the majority party to get its act together and pass bills, and presumably there would be electoral consequences such a majority would face if it failed to do this.  I’m sure plenty of House Republicans would be able to tell you that failing to unite or demonstrating general legislative incompetence presents a big risk that you’ll be deprived of your majority in the next election.  The elimination of the filibuster would thus incentivize majorities to be productive and responsive.

As a concluding thought, I’ll just add that I don’t think any filibuster opponents should have the mistaken impression that eliminating the filibuster would solve the Senate’s dysfunction in one fell swoop.  The rules need a thorough overall (I’m surprised this piece never mentions “filling the amendment tree”), and many filibuster proponents are pretty clear-eyed on what sorts of things the rules should encourage – debate, deliberation, minority participation, bargaining, compromise, etc., etc.  The problem is that filibuster proponents tell themselves the false story that the filibuster is useful in achieving these things (often by reference to some imagined, hypothetical filibuster procedure) when in virtually every case it works against these goals.   The problem for filibuster opponents is to think clearly about what other reforms would be necessary to achieve these goals, because simply removing one barrier does not mean that other barriers would not exist.

As stated several times above, I believe there are fundamentally only two actions available to legislators: to speak/debate/deliberate, and to offer amendments/alternatives.  The rules of the chamber need to be carefully calibrated to permit all members to engage in both of these activities to the greatest extent practicable, while simultaneously ensuring that the chamber is not bogged down with dilatory actions and can actually move forward toward final votes.  It is by no means an easy needle to thread, but there’s no use pretending that the filibuster is helpful in achieving the correct balance.  It is very much not carefully calibrated – a minority veto is an incredibly blunt parliamentary tool.  Reformers should seek to take everything that people say is good about the filibuster and draft rules that directly embed those values in the system. Relying on minority vetoes and other forms of legislative hostage-taking to galvanize productivity obviously isn’t working.

Finally, I’d like to give one last defense of “majoritarianism with minority rights”. If the majority puts a bill on the floor, allows the minority to talk about it, allows the minority the opportunity to amend it, allows the minority the opportunity to offer alternatives to what the majority is proposing, then the majority should be allowed to pass said bill with a simple majority. For some people, this seems to be a very controversial way of doing business. They seem to think that if the minority is not successful in persuading the majority to vote for its amendments, then some great injustice has occurred. They want the minority to be able to insist that the bill be changed to their liking, and to veto the bill if the majority doesn’t agree. I don’t see how this can be described as anything other than a tyranny of the minority, as bad as majoritarianism without minority rights. The minority has a right to participate, but the majority as the right to work its will. That is the essence of democracy.

The process by which a political outcome is achieved is more important than the outcome itself.

The process is the starting point. The process is what affords legitimacy.  Without legitimacy, any political outcome is null and void.

The Process Party is not concerned with political ends.   The Process Party is solely concerned with political means – the processes by which political decisions are made in our democracy.

These processes are in desperate need of reform.  They have become corrupted by the political establishment and outdated by the passage of time.  They require updating and rejuvenation.  The Process Party is dedicated to that effort.