Why Does the Filibuster Persist?

This is a guest post from Eric Schickler and Greg Wawro.  Their book on the filibuster is here.  See also this article (gated).


Greg Koger, Steve Smith, and Sarah Binder have each offered insightful comments on the recent debates over the constitutionality of the filibuster.  A key question left in dispute by these accounts is whether preexisting rules have prevented Senate majorities from changing rules pertaining to the filibuster.  That is, should we read the persistence of the filibuster as evidence that most senators have supported the filibuster as an institution or not?  It is important to emphasize that the answer to this question does not speak to the desirability of filibuster reform but it does tell us what needs to change for reformers to achieve their goals.

First, we agree with Steve Smith that “the Constitution implies that the Senate can change its rules at any time (Art I, Sec 5 is not conditioned in any way) AND that a simple majority is empowered to do so.”  Indeed, the Constitutional authority of each chamber to make its own rules is a key reason we believe that a committed Senate majority has always had the ability to impose majority cloture—if that majority preferred a system of majority cloture to the Senate’s existing rules.

Following from this point, however, we do not agree with Steve’s final claim – namely, that it is “bogus” to assert that the persistence of the filibuster suggests that a majority of senators has generally preferred to allow obstruction.  Essentially, both Binder and Smith believe that the decision to repeal the previous question rule made it much more costly to impose majority rule in the Senate; therefore, the failure to impose majority rule does not reflect senators’ preference for maintaining unlimited debate but instead is because they are unwilling to pay the huge costs entailed in “radical” change.
We have written at length about why we find this interpretation problematic.  Two key points are worth emphasizing, however: first, the nineteenth-century instances that scholars have cited where a majority of the Senate allegedly favored reform but was stymied by obstruction fall apart upon closer inspection.  The most important and telling case was the Federal Elections Bill to safeguard African American voting rights in 1890-91.  When supporters of the Elections bill sought majority cloture to enable the bill’s passage, the Senate came closer to  imposing majority cloture than it has at any other moment.  But the reform effort failed  precisely because Republican supporters of the Elections bill – which southerners were filibustering – lacked a clear, committed majority in favor of the legislation.  Second, when the Senate has had opportunities to move dramatically toward majority rule without requiring a “radical” break with the past, senators have generally chosen to maintain the filibuster.  A key instance occurred when senators discovered that the reconciliation process of the Budget Act could be used as a vehicle to enact all sorts of policy changes by majority vote without the threat of filibusters.  Rather than allowing this loophole to persist – and expand – Senators voted unanimously to institutionalize the Byrd rule, which reinforced the 60-vote requirement by severely curtailing what provisions are eligible for filibuster protection under reconciliation.  In doing so, senators chose to forego a clear opportunity to move toward simple majoritarianism  – without resorting to any sort of “nuclear option” or radical break.  Instead, senators chose to greatly limit the use of the majority-rule reconciliation process.  This choice is hard to square with the idea that senators would really prefer to act through majority rule if only they were not hamstrung by preexisting rules.

So why does the filibuster persist?  We believe it is because most senators believe that they benefit as individuals from the opportunities and leverage it provides them.  The threat to obstruct allows senators to extract concessions from presidents, to raise the visibility of issues they care about (and raise their own profile in the process), and to play an outsized role on the political stage when they find themselves in the minority.  Changing the filibuster does not require overcoming entrenched rules nearly as much as it requires changing the calculus of individual senators – that is, persuading them that voting for majority cloture is in their short and long term personal interest.  This could happen if voters pressured senators to change the rules.  That is a tall order politically, but it is a political challenge rather than (mainly) a problem of entrenched rules.  A majority of the Senate could choose to use its authority under the Constitution to impose majority cloture.  The challenge for reformers is to persuade the majority to make use of this authority.

2 Responses to Why Does the Filibuster Persist?

  1. crf May 18, 2012 at 10:58 pm #

    “The threat to obstruct allows senators to extract concessions from presidents, to raise the visibility of issues they care about (and raise their own profile in the process), and to play an outsized role on the political stage when they find themselves in the minority.”

    Senators like Joe Lieberman? What’s weird is that he is a reformer.

    I once wrote to the tea party (teaparty.org) via email about their position on this issue. But they didn’t reply. They seem to be only political entity driven to getting their legislative aims enforced by any means. So you think they’d support this. I don’t think they do. At least those leading the rank and file tell them to support Senate filibusters all the time. How are they going to ever defeat ObamaCare if the filibuster is in effect?

  2. Steve Smith May 23, 2012 at 8:43 am #

    I was tempted to let the Wawro-Schickler argument go unanswered, but there are serious problems with it that probably should be addressed here.

    There are several relevant parts of the Binder-Smith argument.

    First, direct reform by standard Senate resolution is readily defeated under the current rule, which requires a 2/3s majority to impose cloture on a change in the rules (it was even easier before the cloture rule was adopted in 1917). In 1975, defenders of supermajority cloture anticipated future reform efforts and wanted change in the rule to be pursued under the terms of Rule 22 and subject to the higher supermajority threshold. Effectively, this threshold forces reformers to consider strategies that require favorable rulings–say, on constitutional grounds–by the presiding officer and Senate that circumvent the express intent of the rule.

    Second, senators who benefit from the supermajority threshold for cloture resist changing it and can impose sufficiently high costs to make it exceptionally difficult for reformers to change the rule, even with a reform-by-ruling approach. These costs range from delays in acting on substantive legislation to “going nuclear” by disrupting Senate proceedings. Majority leaders, more than anyone, have given heavy weight to these costs.

    This is “precisely” what happened on the election bill–a majority for the bill was obstructed by the minority but broke apart because of the delays in acting on unrelated legislation. W-S seem to imply that the majority for the bill was a pseudo-majority because it was not a “clear, committed” majority. The W-S account of this episode remains selective. In real time with real priorities at stake, the opportunities costs imposed by obstruction are real and are perceived in different ways by various factions within a majority (B-S-Madonna provide the detail). A filibuster killed the bill and Gorman turned out be the hero for the minority Democrats for orchestrating the effort. For his efforts, Gorman became recognized as the floor leader for his party.

    Third, B-S emphasize the interests of individual senators as much as W-S do and reported some systematic analysis of what those interests might be. However, we should not infer from senators’ interest in preserving their individual prerogatives that a majority has never existed for filibuster reform. In the path dependent world of parliamentary procedure, this distinction matters.

    Fourth, W-S note the supermajority threshold for waiving the Budget Act’s provisions, including the Byrd rule. The big picture is that the Senate chose debate limits and a simple majority threshold for one of its most important types of legislation, budget measures. It did so with constraints on what could be included in the measures. Because senators had proven over the years to be quite willing to waive such constraints by a simple majority and committees showed an eagerness to turn reconciliation bills into Christmas trees, budgeteers stuck a 60-vote threshold for circumventing the constraints and eventually added the Byrd rule to the set of constraints. I’m not sure how this demonstrates that “senators have generally chosen to maintain the filibuster.” In any case, “generally chosen” is not contrary the B-S argument.

    B-S observed that there are many classes of legislation for which the Senate has accepted a simple majority threshold by imposing debate limits. In practice, the Senate has whittled away the range of legislation subject to filibusters and has shown a penchant for expanding the uses to which reconciliation bills are put. I think these observations remain valid.

    We should keep in mind the guts of the W-S argument: majorities want filibusters for their informational benefit–filibusters give the majority a way to measure the temperature of the minority. We still need a way to account for the Senate’s decision to treat some measures–such as budget measures, surely among the most important measures in the modern Congress–without regard to this concern.