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.