Filibustering and Deliberation: the Case for Free and Full Debate

As the Monkey Cage faithful know, I have been posting short essays on filibustering in an effort to contribute to the broader discussion of how Congress will (or won’t, or should) debate health care reform. My last post making a case for preserving the Senate filibuster sparked some skepticism from our colleagues Seth Masket and Matt Jarvis as well as Washington Post columnist Ezra Klein.

In this post I wanted to briefly respond to some of these thoughtful comments by making one main point: filibustering empowers the minority party to insist on a fair chance to debate major bills—and this is a good thing. Not only is it fair to the minority party—and good for the electoral process—to allow real debate on major legislation, it also enhances the legitimacy of the majority party and its actions.

1) Filibustering and Deliberation

It is common knowledge among Congress scholars that, over the last thirty years, the majority party in the U.S. House has steadily increased restrictions on amendments and debate on the House floor. The majority party’s power stems from its 9-4 majority on the Rules Committee, which issues “special rules” that govern debate on important bills. A simple majority is required to approve a special rule, so as long as the majority party sticks together it can control which issues comes to the House floor, how long they are debated, and which amendments will be allowed.

The problem with this system is that the ability of the minority to speak and offer amendments depends on the good humor of the majority. If some legislator wants to offer an amendment that will force the majority party members to make a politically awkward choice, then the majority party leadership can save their members grief by selecting which amendments can and cannot be offered to a specific bill. For example, if a House Republican wanted to offer amendment to the health care reform bill striking the penalties for individuals who refuse to get health insurance (arguing that this constitutes a “tax increase”), Speaker Pelosi and the Rules Committee could deny the Republican an opportunity to propose the amendment on the House floor.
In their book The Broken Branch, Thomas Mann and Norman Ornstein deplore the degeneration of deliberation in the House over the last three decades (see the update here), and point out that both parties, during their periods of majority status, have contributed to the gradual tightening of the screws on the House floor.

Why don’t we observe the same pattern in the Senate? In an effort to avoid filibusters, the majority party leadership consults with all interested senators—including minority party leaders—when bringing legislation to the Senate floor, with the goal of negotiating a unanimous consent agreement. If the majority party proposed the sort of debate ground rules that are common in the U.S. House, the minority party would simply say “no” and hold out for a full debate and amendment process.

Consequently, the Senate often ends up voting on more amendments than the House, including more amendments offered by the minority party. While I didn’t have time to survey every major bill over the last few years, I did scan some illustrative bills from 2003-6 (Republican majorities) and 2007-8 (Democratic majorities). Here are the number of votes on amendments (including motions to recommit with instructions in the House) by party in the House and Senate for major legislation:

Major bills (selected) 2003-2008.jpg

The punch line is that, on many of the most important legislation of the last seven years, the members of the House generally have fewer opportunities to offer amendments (at least amendments interesting enough to merit a vote) than senators. On some bills, the members of the House were almost completely muzzled.

2) The Value of Legislative Debate

Why does open debate and amending matter? One rarely sees legislators on the floor of the House or Senate engaging in genuine dialogue so that their positions converge. However, floor debate can be useful as an information source for members of Congress watching on C-SPAN—debate can help them decide how to vote, to explain their votes, and to understand the talking points of the other side.

Amendments raised by the minority party can improve legislation (e.g. Republican amendments to limit medical lawsuits, if adopted, could help Obama achieve his campaign agenda). Even if they are defeated, they can improve the representative process by creating a clear record of how legislators stand on key issues. This should be especially important to my colleague Seth Masket, who worries about the effects of filibusters on party responsibility; in a healthy system of party responsibility, the minority party is able to explain how it would govern differently from the majority party (see Downs, Anthony). Roll call votes are a credible basis for understanding how the minority party would govern if given the chance.

Deliberation also has great public value. On some level, citizens want to believe that their views are heard and understood by lawmakers who take them seriously. Even if their viewpoint loses out—ESPECIALLY if their viewpoint loses out—they do not want to feel ignored or ramrodded by a hostile majority. For this reason, the more important the decision, the more important it is to have a full and free debate in Congress. Even if the “debate” is pure Kabuki theater of set speeches and fixed minds, there is great value in compelling the majority to make its case in public and letting the opposition state its case. Mike Mansfield, Senate majority leader from 1961 to 1976, credited the “longest debate” over the 1964 Civil Rights Act for its relatively swift acceptance by Southern whites despite its dramatic effect on social and economic relations. After 70+ days of debate and a two-thirds majority for cloture and passage, no Southerner could argue that his or her views were not voiced or heard, or that the supermajority supporting the bill was ill-informed or insincere.

Which brings us to health care, Obama, and Tea Parties. As we have all seen in recent months, there is a segment of American society that is virulently opposed to Obama, the Democratic agenda in general, and health care reform in particular. And for people outside this movement, their rhetoric and arguments can seem bizarre, conspiratorial, fallacious, and offensive. And yet, the anti-Obama activists are our fellow citizens. They can vote, and donate money. And buy guns…lots of guns. To the extent their arguments are misguided, deliberation may help to correct their views.

More important, anti-Obama activists seem to be driven by a sense by alienation—like many Americans, their lives are caught in an economic vortex beyond their control: 401ks depleted, houses devalued and foreclosed, wages stagnant or jobs evaporated. This is compounded by dramatic political changes that alienate citizens accustomed to being the dominant strain in society. Like the Simpsons locked out of their home by squatters, they may feel dispossessed by a coalition of outsiders—even when the outsiders are their own sons and daughters voting for Obama. In an insightful column, Ed Kilgore argues that the anti-Obama activists are not generally “racist”, but that race is an element in this sense of lost power, and fear of proposals (like health care) which would expand the power of others over their lives. GOP pollster Frank Luntz echoes this analysis: “The real reason why 72% of the people I interviewed say that they’re ‘mad as hell and they’re not going to take it anymore’ has nothing to do with racism. No, their rage is about a lack of accountability, a lack of respect, and a lack of progress in the nation’s capital.”

While it is unlikely that any Democratic action would convert these activists into Obama supporters, a full debate on health care reform could defuse their anger. They would observe that conservative lawmakers got a full and free chance to make their case. And open conversation by lawmakers who are publicly accountable for their claims would dispel some of the worst rumors about the bill, e.g. even the most conservative Republican member would have to admit that the bill does NOT establish death panels to allocate health care. A quick, partisan debate, on the other hand, would probably amplify anti-Obama activists’ sense of exclusion.

In the end, there may be some truth to Ezra Klein’s statement that “a chamber built for cooperation cannot function in an era of polarization”—the negotiations to bring a health care bill to the Senate floor will probably make a Byzantine blush—but if the price of cooperation is a full debate of health care, both parties and most Americans may come out ahead.

7 Responses to Filibustering and Deliberation: the Case for Free and Full Debate

  1. Pliny October 16, 2009 at 11:54 am #

    Greg I think your point would be strengthened by looking beyond any kind of deliberative functions of the filibuster at all. The quality of deliberation in politics is so low, in many important cases nothing but repeated application of set-piece talking point arguments, that some people will always remain unconvinced by this line of argument.

    The filibuster is now one of the primary mechanisms we have to ensure implementation of Madison’s point in Federalist No. 10, that if the US government is going to do something, it ought to have supermajority support cutting across factions. Many of the initial designs to ensure that have faded or failed, e.g. small state vs. big state representation in the chambers, sectional cleavages largely folded into an overarching party cleavage, etc. The filibuster has filled the void.

    The underlying precept is that governing majorities often get it into their head to do silly or harmful things, to the country or to their political opponents. Madison’s design was intended to limit that. It’s debatable whether he’s right and whether we still want a government faithful to that precept, but that’s what the filibuster gives us.

    So, it ensures that you have to have broad based support to do anything big in legislation, that generally speaking continuity in statutory policy is the rule, and that you can’t win by stoking the fires of narrow factional conflict. Of course it may also (cue Howell) empower the president, but so would any institution that requires supermajority agreement in Congress. Anyway all of these are benefits of the filibuster that don’t hang on its deliberative effects, which may be minimal when (A) filibusters are often silent affairs, and (B) the terms of debate for the opposing sides are so different as to make deliberation impossible, no matter how long they debate.

  2. Greg Koger October 16, 2009 at 12:09 pm #

    Pliny,

    I agree with your main argument. And, you are right–most Congressional debate is mind-numbing. But it does have its purposes. My post makes the case for a “cathartic” effect–if citizens perceive that proposals are fully debated, they will be more likely to accept the outcomes. And, I have personally observed that, although the content of floor speeches may be bland, there is a great deal of signaling information in observing WHO takes which side and which arguments they use.

    But my emphasis above is on the ability to offer amendments, so the minority party can create a record of its alternative proposals (or at least can’t deny that they had a chance to do so) and either improve the legislation (i.e. their amendments are adopted) or compel the majority party to make a case (and take votes) against their amendments.

    And, as you may see in my previous posts, this can include an effort to bring up a new issue on the Senate agenda.

    While the filibuster itself may be silent, legislators can bargain the right to filibuster for the right to an adequate debate and amendment period.

  3. arbitrista October 16, 2009 at 1:20 pm #

    I think this position betrays a deep niavete as to the nature of contemporary American politics. The filibuster is in no sense used for the purposes of deliberation, nor are amendments. The principal function of the filibuster (and its cousin the hold) is electoral. It is NOT about legislating – it is about positioning the minority for the next election.

    As for Pliny’s comment, the purpose of Madison’s argument was to demonstrate how the political system would prevent the existence of a majority faction. However, what we are experiencing is what Madison never thought feasible in a democratic system – rule by a minority faction. By blocking any and all legislation, the minority can impose its will on the majority by threatening the fiscal wellbeing of the entire community, a la California.

  4. Greg Koger October 16, 2009 at 1:47 pm #

    Arbitrista,

    it would be truly sad if, after working in Congress for 2.5 years, studying Congress for twelve years, and writing a book about filibustering I was “naive” about Congressional deliberation.

    I claim that the majority party often constrains the ability of the minority party to debate and offer amendments. This is apparent to the most casual observer of the U.S. House. I claim that the minority party in the Senate avoids this fate by threatening to filibuster legislation until the majority offers them a fair (and often, very generous) opportunity to debate bills. Again, apparent in the contemporary Senate, although you may have to read Congressional Quarterly’s Weekly Reports and the contents of unanimous consent agreements to see the details.

    Perhaps we are confused about terms. I’m not talking about some sort of Habermas-ish ideal speech situation, which is nothing like real Congressional debate. I mean the boring & redundant speeches of actual floor debate, with amendments often designed to make political points. The post makes the case that even this low-quality conversation serves a genuine purpose, and filibustering to preserve it also serves a purpose, especially when the alternative is the majority party (by both Republicans and Democrats) straightjacketing we observe in the House on major legislation.

    As for Fed. #10, you could say that Madison was the naive one. He thought that this extended republic would be too diverse for any stable coalitions to govern in a manner that is adverse to the national interest. Contrary to rumor, political parties developed anyway. I think parties do a lot of good in this system, at least if the alternative is chaos and/or factional politics. But one of my points on Sept. 23 was that in a majority party-dominated legislature, it is possible for the majority party to push through legislation that is a) not supported by a true majority of the chamber and b) not in the national interest. For example, without arguing about the content of the legislation, it is pretty clear that the 2003 Medicare Prescription Drug Act met the first criteria; Ornstein and Mann’s book begins with a long, painful description of the subversion of the “regular order” in this case.

  5. Pliny October 16, 2009 at 2:16 pm #

    “By blocking any and all legislation, the minority can impose its will on the majority by threatening the fiscal wellbeing of the entire community, a la California.”

    But this is plainly not happening, in CA or the US. State policy in CA is very very far from what the remaining GOPers in the assembly want. Closer than it would be without supermajority budget rules, obviously, but still very far.

    Supermajority rules of any kind require the agenda setter to get just enough of the opposing party on board to pass the voting rule. Cf. Obama’s stimulus vote last winter. If the minority party is very homogeneous, as in CA’s GOP, this approximates unanimity rule. While it leads to prolonged impasse when the factions are very far apart, and a tilt from the status quo in the minority’s favor, it does not and has not led to “government by minority faction.”

  6. arbitrista October 16, 2009 at 4:16 pm #

    I’m not entirely inexperienced with Congress myself, although more of my academic study and practical involvement has been on the electoral side. I apologize if my earlier comment was offensive in any way.

    Having said that, I think what I find unpersuasive is that the quality of legislation and sense of civic participation is meaningfully enhanced by the use of the filibuster. Are tea-baggers genuinely going to feel less marginalized if there is a filibuster that is ultimately overriden? How are those in the political majority going to feel represented if their policy preferences are systematically blocked by an intractable minority? And while the quality of a particular piece of legislation might be improved, what do we make of legislation that either does not pass at all, or is made substantively worse by the negotiations required to end a filibuster? I suspect many economists would view the stimulus as a mess, and whatever version of health care that emerges is likely to be the same.

  7. Seth October 17, 2009 at 10:24 am #

    Mike Mansfield, Senate majority leader from 1961 to 1976, credited the “longest debate” over the 1964 Civil Rights Act for its relatively swift acceptance by Southern whites despite its dramatic effect on social and economic relations. After 70+ days of debate and a two-thirds majority for cloture and passage, no Southerner could argue that his or her views were not voiced or heard, or that the supermajority supporting the bill was ill-informed or insincere.

    I would love to see Mansfield’s thesis tested. I agree that deliberation has value and that members of the minority party should feel that their views are being heard, even if they usually don’t win. To the extent that the filibuster creates this sort of deliberation and sense of inclusion, then it probably deserves some praise.

    That said, Southern blacks paid an enormous price for this sort of deliberation, in the form of delayed civil rights legislation, weakened anti-lynching laws, and a prolonged Jim Crow regime. If the deliberation meant that we avoided an 1870s-style white backlash in the 1970s, then maybe it was worth it. If not, it’s an awful price to pay so that Southern whites could feel better about themselves.