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.