I was intrigued by yesterday’s TMC post on storable votes by Alessandra Casella and Sébastien Turban. Essentially, they propose that, in lieu of the filibuster as a defense against tyranny of the majority, the Senate should allocate each senator a “budget” of votes which they can allocate across proposals as they like, so each senator can “spend” a lot of votes on proposals that s/he considers very important.
As a practical matter, the Senate already has something like this system in the form of legislators’ time. Each member of the Senate starts out with the same amount of time before the next election and similar legislative staff allocations (plus bonuses for committee chairs). Then each senator makes two allocation decisions: first, how much time will s/he spend legislating instead of fundraising, visiting the home state, or hanging out with the family? Second, how much legislative time will s/he allocate to each issue? If senators’ time & staff resources are limited and senators’ efforts influence whether a proposal succeeds or fails, then the allocation of time is an indirect form of measuring and incorporating preference intensity into the legislative process.
Two features of the Senate filibuster interfere with this informal system for accommodating preference intensity. First, as Casella and Turban note, since the modern filibuster is a de facto 60-vote supermajority requirement, there is no mechanism to ensure that the more intense side wins the vote on cloture. Second, if senators use cloture petitions to end a filibuster, there are some hoops built into the process: collecting signatures, filing the petition, waiting two days (usually this time is spent on another issue) and then actually forcing senators to leave their offices/committee hearings/fundraisers to vote. This means that any senator can cheaply impose a “minimum bid” on a proposal by threatening to filibuster it. In this sense, a “hold” (or a threat to filibuster a measure) can be a de facto filibuster if the other senators are not willing to invest enough time to overcome the threatened filibuster.
The classic filibuster-by-attrition was fundamentally different and closer to a pure comparison of intensity. In these filibusters, a team of obstructionists would invest time in blocking a measure while the other senators would invest their own time and the time of the chamber to wait them out. The team that lasted longer won. As long as senators on both sides of the fight attached equal value to their own time and the time of the chamber, this was a fair fight and the team willing to make the biggest allocation of time would win. As discussed here, this system broke down when senators realized it was harder to beat a filibuster than it was to keep a filibuster going.
Further reading (additional suggestions welcome in comments section!)
The best discussion of legislators’ allocation of time for legislative work is Richard Hall’s Participation in Congress. Hall and Richard Deardorff apply this idea to the question, how do lobbyists influence the legislative process. Jonathan Woon studies the allocation of senators’ attention across proposals. Kathleen Bawn & I developed a model of competing factions investing effort and applied it to filibusters.