By Request: Filibusters
Jason asks:
Are there really any strong reasons for the 111th Senate to adopt Rule 22 (60 votes for cloture)?
I don’t really want to do an analysis of the short-term of the short term politics, spin, and ethics surrounding this issue beyond noting that back during the “nuclear option” fight I took an anti-filibuster line. Instead, I think it’s more useful to think in broader and more abstract terms.
The book that’s been most influential on my thinking in this regard is George Tsebelis’ Veto Players: How Political Institutions Work. One of the points he makes (no idea how original this is to him) is that one of the best ways to characterize different types of political regimes is in terms of how many veto points exist at which legislation can be blocked.
In a Westminster regime such as they have in the UK or Canada, there’s just one. The cabinet formulates a proposal, and then it needs to be voted on in parliament. And thanks to tight party discipline, things are basically never blocked. One variant on that is a system, such as they have in Israel or the Netherlands, that combines a unicameral parliament with cabinets that are invariably formed by coalitions. In a system like that, the threat of a parliamentary veto is more real and you can see government crises and collapses. In some countries, there’s an elected president who can veto legislative actions, which adds another veto point. And in some countries there’s a second legislative house whose concurrence is necessary to pass legislation.
The United States has all three of those things. It also has a system in which a bill generally needs majority support on relevant committees and subcommittees in order to pass. All told, that’s a lot of veto points compared to what you see in most democracies.
So that’s the context in which to ask whether or not it makes sense to have a supermajority requirement for many Senate votes. I would say “no.” Even absent the filibuster, our system would still feature an unusually large number of veto points, especially when you take our unusually robust system of judicial review into account. The supermajority requirement is at odds with our basic democratic norms, you’d be hard-pressed to come up with an example of it ever actually being used to protect the interests of some kind of put-upon minority, and I see no empirical reason to think that our systematically larger number of veto points is producing systematically better results than you see elsewhere. On the other hand, there’s good reason to believe that the large number of veto points makes it easier for narrow interest groups to block public interest reforms.
64 Responses to “By Request: Filibusters”
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January 5th, 2009 at 7:45 pm
Hardily agree.
This is how so much blockage and back scratching (neither one of which is usually good) happens. And is why they have to happen to get anything done.
We have votes based on what I can do for you and you for me not on good governing. This seems to be especially true for the senate where there are fewer cats to herd.
Ruckus
January 5th, 2009 at 7:55 pm
I agree. However, I think a more robust usage of the Budget Reconciliation Bill process is a functional equivalent that’s much harder to block procedurally and in terms of public relations.
January 5th, 2009 at 7:56 pm
Actually the Netherlands has a bicameral parliament, where the upper chamber exists only to either accept or reject legislation passed by the lower chamber.
January 5th, 2009 at 7:57 pm
Just a quick point, Australia has a Westminster system and theoretically has two veto points, the lower and upper houses. This is also the case in the UK and Canada.
In the Australian case, depending on electoral circumstances, it is very rare for the upper house, the senate, to be controlled by the govrening party. Whereas a tradition of rigid party royalty means the lower house is not a block. The senate on the other hand is a very different beast, and in most cases is a serious hurdle for governments to jump over.
The American system is actually probably preferable to this one in some ways, as the lack of party discipline means reps vote their district most of the time.
A supermajority requirement would seem to herald the rise of rigid party discipline, which would be a difficult thing for the US system to handle I think. Without the development of a third party of course!
January 5th, 2009 at 8:05 pm
Yeah I guess the Filibuster on the Federal Marriage Amendment that the Democrats did in 2006 was a horrible idea.
January 5th, 2009 at 8:10 pm
The problem is how do you eliminate the filibuster in a way that is fair. People might have been more exercised about not drilling in ANWR in 2000 if we thought that it suddenly took 50 votes, but in reality it took 60 votes and so most people didn’t worry much till it got closer.
January 5th, 2009 at 8:12 pm
The American system is actually probably preferable to this one in some ways, as the lack of party discipline means reps vote their district most of the time.
America’s “lack of party discipline” has all but broken down
The Bush administration ran the Republicans in congress like a parliamentary system with rigid party discipline, and the Democrats will do precisely the same. The US appears to be rapidly transitioning to parliamentary government, and in 10 years, crossing the floor will probably be as rare in the US system as in the Australian system.
January 5th, 2009 at 8:24 pm
Re: The US appears to be rapidly transitioning to parliamentary government
Except for the very important facts that there’s no guarantee that the executive will belong to the same party that controls the legislature, or that both houses on Congress will belong to the same party.
January 5th, 2009 at 8:25 pm
I did my Masters Thesis comparing Tsebelis’ veto players measure of institutions (simply number and position of the veto points) with Lijphart’s Consensus-Majoritarian scale. Lijphart basically says that the way humans deal with vetos matters, thus a highly constrained country like Belgium (federalism and coalition governments) can actually be more effective than a largely unconstrained government like the UK (essentially unitary with a single veto point). My paper only tested these two with regards to their impact on social welfare spending, but to the degree that I could draw a conclusion, it favored Lijphart, not Tsebelis.
That said, I don’t think that the filibuster is the type of constraint that encourages effectiveness. It is more a block to action than an incentive to find consensus positions.
Considering how many votes it takes to pass an Amendment, the filibuster is irrelevant except for allowing political cover of claiming you didn’t actually vote against the Amendment.
January 5th, 2009 at 8:40 pm
Your only point, is your original premise: democracy is majority rule.
The Senate is maybe the worst example of where majority rule would lead to minority rule: 51 senators could represent far less than 50% of the people.
And, BTW: the Senate is a consensus, as in 100% consensus body. One senator can put a hold on most things.
The other thing missing in the majority rule idea is that the Senate operates on the long term. Senior members have more power, members need to build working relationships with each other if they want to get anything done. So the standard of majority rule on every vote is bogus. Most votes in the Senate are by very wide margins.
My main problem with majority rule is that the majority is always defined in terms of who can vote (or did vote). When we give everyone who can punch a ballot the right to vote, I’ll concede that we live under majority rule.
Playing for 51 votes in the Senate doesn’t seem like a noble goal which will prove that our democracy works, it is just another point around which negotiation will proceed.
My personal position is the original: require unanimous consent. Senators would learn really fast that their coalition-of-one is doomed to failure.
January 5th, 2009 at 8:43 pm
The system was designed to make it difficult to pass laws. A lot of bad ideas would have been enacted without it. That said, there was a sense in thelate 70s that the system had broeken down, and that what we needed was something like a parliamentarian system. A commission of wise men, including Arthur Schlesinger and Robert Strout (the original TRB) proposed such a plan. The problem was, Reagan made it moot. He showed that a president could enact a bold plan quickly.
January 5th, 2009 at 8:49 pm
Let’s face facts here. The primary accomplishment of the American filibuster was to frustrate any attempt to control the phenomenon of lynching or to address Jim Crow.
Since America is not regularly lighting negroes on fire any more, and since on the whole, most Americans feel that this is not a good thing… do away with the institution. Make it a kind of goodwill present to the new President.
And while we’re at it, let’s face facts and acknowledge that the American system of governance is two centuries old, it’s archaic, and in many respects obsolete. It has failed to keep pace with either technology nor with social development. Let’s face it, the Electoral College is an international joke. The truth is that most modern democracies have chosen not to emulate the United States with its failed and failing system.
January 5th, 2009 at 9:05 pm
The problem is how do you eliminate the filibuster in a way that is fair. People might have been more exercised about not drilling in ANWR in 2000 if we thought that it suddenly took 50 votes, but in reality it took 60 votes and so most people didn’t worry much till it got closer.
My guess is that you define Democratic initiatives being filibustered as being unfair and Republican initiatives being filibustered as being fair. Have I understood you correctly, or is liberal hypocrisy too bitter a pill to swallow?
January 5th, 2009 at 9:34 pm
oustanding post
January 5th, 2009 at 9:49 pm
I would suggest, as I so often do, that Harry Reid requiring Republicans to actually stand up and filibuster (rather than signal their “intent” to do so) would make much of this debate moot. They have neither the physical stamina nor the political gumption to do standing up what they did in the last Congress from their seats.
January 5th, 2009 at 9:50 pm
Hardily agree
Is Yglesias’ Typo Disease spreading to his commenters?
January 5th, 2009 at 10:28 pm
Aaron S. Veenstra is exactly right. The filibuster is fine, provided that the majority actually forces the minority to filibuster. That would prevent them from derailing nearly everything just by threatening and ensure that it is only used in rare cases when something is truly intolerable.
January 5th, 2009 at 10:30 pm
The truth is that most modern democracies have chosen not to emulate the United States with its failed and failing system.
The further truth is that when the US had the opportunity to introduce American-style democratic institutions in other countries (most notably post-war West Germany and Japan) it didn’t.
The important bit of Matt’s post: the Village-approved hypothesis that legislative friction delivers some kind of bipartisan consensus is just a myth. Friction just means more palms to grease.
January 5th, 2009 at 10:44 pm
Your commenter’s question is based on a mistaken premise, that the Senate needs to adopt the cloture rule at the start of the 111th Senate in order for it to be effective.
The Senate, unlike the House, does not need to adopt a rules package at the start of every congress in order to proceed with its business. The reason is that it is a “continuing body” in that two-thirds of its membership carries over from the previous congress without requiring any swearing in. If you recall, this is precisely what led Republicans to float the nuclear option. Without the opportunity to vote on the adoption of Rule 22 at the start of a congress, they would not have a conventional means to block it.
That does not invalidate the rest of your post, but because the commenter mischaracterizes a fundamental feature of the Senate, it deserves correction.
January 5th, 2009 at 10:49 pm
I think the problem with the U.S. system has more to do with the lack of party discipline than anything else. The whole problem of lobbies and special interests exists precisely out of this vacuum of party control: individual congressmen, whose interests may not coincide with the general platform of their party all the time, and whose financial and fundraising needs make necessary the input of those with the requisite resources, and who as a much smaller force than the national executive is far less resistant to the agglomerated power of special interests, are far easier to be persuaded to vote in a particular way than the caucus as a whole.
Another problem is, of course, the misplaced accountability. In a parliamentary system it is understood that, given the party discipline, the individual member cannot be held against what are essentially mandatory votes not of his volition. This makes him useless to the lobbyist; why lobby someone who has no choice to vote a particular way already and whose vote is inalterable? In the American system, however, it is expect that Congressmen are to vote at least partially on their own volition; the expectation of individual accountability lends itself to external persuasion, as the vote of the individual is not considered to be inalterable from the party position. This opens up room for lobbying.
Or put it another way; if the whip forces A to vote for X and can enforce his will, there is no incentive for Y to lobby A. If the whip forces A to vote for Y, there is no incentive either, because he is already voting for Y regardless.
January 5th, 2009 at 10:51 pm
Pork-barrel politics, by and large, result from the same source.
January 5th, 2009 at 10:53 pm
The further truth is that when the US had the opportunity to introduce American-style democratic institutions in other countries (most notably post-war West Germany and Japan) it didn’t.
This is incorrect. Regent McArthur did not really have a choice as to the Japanese system of government; if he were to install a presidential system, he would have had to remove the monarchy, which was considered grossly offensive and inoperable.
January 5th, 2009 at 10:55 pm
By the way, the US system was installed in Philippines, a former US protectorate. It is currently a farce.
January 5th, 2009 at 11:00 pm
Well, I think an important factor is whether that friction exists in a two-party or multiparty system. If you have a two party system where one party can always frustrate the will of the other, it is their incentive to do so in order to gain power. In a multiparty system, no party can single handedly pass or stop any given action, and non-plurality parties will not benefit as directly from frustrating action. Thus in this scenario having some friction successfully leads to action that incorporates a broader consensus.
I really do think we need to switch to a unicameral 200 member, proportional representation, parliamentary legislature, where the plurality party takes control over the executive. I’m not entirely sold on governing coalitions compared to a minority single-party executive. I think the incentive needs to be that legislative coalitions can change from issue to issue, but if they are cemented in the government then there is the tendency to have the same coalition on board with every initiative. Not that we’ll ever change our system because obviously the founding fathers could never make a mistake (or decide on a lame compromise that they hoped we would fix later on).
January 5th, 2009 at 11:14 pm
Proportional representation seemed not to have gone too well in Anglophone countries. New Zealand politics is a mess; Australian politics not much better.
There is a real possibility, with a proportional system, of emergence of both National Front and socialist parties in the legislature. America already has enough extremists in Congress (some Southern Republicans, Bernie Sanders, among others); it does not need parties in Congress dedicated exclusively to the extremist cause.
January 5th, 2009 at 11:14 pm
Huey Long was famous for opposing Roosevelt policies — from the left. He filibustered New Deal legislation because it was not generous enough to the poor and the working class. This included the National Recovery Act and the Glass-Steagall Act, both of which he argued were giveways to big business.
But then I guess the poor are really a minority, are they?
January 5th, 2009 at 11:31 pm
The Founding Fathers fucked us royally. When our society collapses, it will be because of this truly wretched system of government we inherited.
January 6th, 2009 at 12:35 am
Bernie Sanders is only an ‘extremist’ in the same way and to the same extent that Velveeta™ is ‘cheese’.
I checked his website, and nowhere do I find reflected the notion that property is theft, or that all power properly belongs to the soviets of peasants and workers.
January 6th, 2009 at 1:10 am
I see no reason why *limited* forms of proportional representation couldn’t do well in the U.S. context.
I wouldn’t advocate a straight party-list system, but dividing House delegations (where applicable) into 3-5 member districts elected by the single transferable vote or even the semi-proportional cumulative vote could better reflect the popular vote and give voters more choice.
I’ve also read that one *slightly* plausible Senate reform would be to make it mixed-member proportional, ala the German Bundestag: 1 senator from each state (thus keeping states equal) plus an equal number of senators elected through a national party vote, with a high threshold (say, 5-10%). That would better reflect the national vote and make the Senate more democratic.
That being said, though I favor proportional representation, I think more realistic goals would be (1) ending the filibuster, as Matt suggests, (2) mandating nonpartisan redistricting in the House, instituting Instant-Runoff Voting in House and Senate elections, and (3) abolition of the Electoral College.*
(* I actually would not favor instant-runoff voting in presidential elections: because of their high profile, presidential ballots tend to get lots of third party candidates, and IRV could well actually overrepresent the third-party vote in those races, making the general election a mad pander to the constituencies of these various third-party candidates; just declare a 40-45% runoff threshold, like the constitutional amendment that nearly passed Congress in ‘69 — I don’t think it’s a big deal if a president is elected with only a plurality, provided it’s a large plurality.)
January 6th, 2009 at 3:01 am
I checked his website, and nowhere do I find reflected the notion that property is theft, or that all power properly belongs to the soviets of peasants and workers.
He is an openly declared socialist; need I say more?
January 6th, 2009 at 3:03 am
But then I guess the poor are really a minority, are they?
Only if you choose to ignore the fact that Huey Long was a corrupt, bribe-taking, machine-politics demagogue.
January 6th, 2009 at 3:03 am
And I forgot to throw in embezzlement and racketeering in there. Really don’t know why you wanted to bring up a criminal.
January 6th, 2009 at 5:50 am
The UK has more than one point of veto. When the government majority is small or non-existent (eg the Major years), the Commons regularly blocks legislation. Even when the government has a large advantage in MPs, the Lords provide another point. The Lords have blocked many bills in the last decade. A determined and united government can in theory override them with the Parliament Act, but it happens much less often than you’d expect. So for instance the Lords recently blocked legislation that would have extended the length of time police can hold terrorist suspects without charge.
“He is an openly declared socialist; need I say more?”
Yes.
January 6th, 2009 at 6:52 am
At a minimum, the Republicans should be stripped of the right to filibuster judicial appointments, which is what they effectively did to us.
January 6th, 2009 at 7:24 am
There is an error, unfortunately, in the way the question was asked. The Senate is a ”continuing body,” and its rules carry over from one term to the next. An amendment to the rules (for example to abolish filibusters) can itself be filibustered.
(The Senate is a continuing body because only about 1/3 of
members have terms expiring at the end of any one session.
By contrast, the House is elected anew each Congress and in
principle writes its rules from scratch in the beginning of each term.)
January 6th, 2009 at 7:58 am
He is an openly declared socialist; need I say more?
yes.
January 6th, 2009 at 8:32 am
He is an openly declared socialist; need I say more?
Joining the ranks — in reverse chronological order — of Comrades Tony Blair, Gerhard Schröder, and François Mitterand, dangerous left-extremists all.
January 6th, 2009 at 9:17 am
Такое ощущение, что пост заказной
January 6th, 2009 at 9:43 am
The US system has a lot of veto points because it’s supposed to protect property rights. It’s very hard to expropriate private business, at least it was before the Bush administration starting nationalizing the financial industry. The US became the wealthiest country in the world under the system, so you ought to give more consideration to the possibility that we’ve done something right.
January 6th, 2009 at 10:07 am
The advantage of having multiple veto points is stability – the government does not commonly go off on faddish changes, and on the other hand is not brought down if one of its initiatives fails.
There is no question that it helps conservatives, who favor less government action, specifically less intervention in the economy.
January 6th, 2009 at 10:14 am
So we should adopt the five-centuries-old British Parliamentary system?
January 6th, 2009 at 10:19 am
Let me add that Britain in the 18th and 19th centuries became the most wealthy and powerful country in the world under a system with a lot of veto points: the King and the House of Lords used to matter.
January 6th, 2009 at 10:21 am
you’d be hard-pressed to come up with an example of it ever actually being used to protect the interests of some kind of put-upon minority
How about put-upon majorities? Thanks to gerrymandering in the House and undemocratic allocation of Senate seats population-wise, a cohesive minority (such as certain corporate interests) can sometimes muster a majority of votes in Congress.
Maybe getting rid of the filibuster rule is a good idea anyway, but you should consider that.
January 6th, 2009 at 10:51 am
For once, this post and the following comments are genuinely enlightening…though, perhaps not in the way any of the posters intended. I think you can clearly see that criticism of stuff like the filibuster and the electoral college from the left is rooted in a belief that other countries have more liberal-friendly policies because of their political systems. Therefore, change America’s system to be more like those countries and…Presto! Liberal America Utopia!
Mike
January 6th, 2009 at 10:52 am
Re: America already has enough extremists in Congress (some Southern Republicans, Bernie Sanders, among others); it does not need parties in Congress dedicated exclusively to the extremist cause.
Bernard Sanders is no more an extremist than Neil Kinnock or Olof Palme was an extremist. In point of fact, the U.S. political spectrum is pretty narrow on both ends. With the possible exception of family and personal morality, there is pretty much a fairly narrow consensus on political, economic and social values between the two parties.
Re: The US became the wealthiest country in the world under the system, so you ought to give more consideration to the possibility that we’ve done something right.
Stalin turned a largely peasant nation into the first country to put a man in space. I don’t think that means that anyone should be looking to emulate the Stalinist system, do you?
January 6th, 2009 at 10:55 am
On second thought, the environment is another area where there isn’t much of a consensus. There appear to be a sizable contingent of Julian Simon, pave-over-the-Amazon nutjobs in this country, although I’m not sure how many Congressmen actually subscribe to that philosophy.
January 6th, 2009 at 10:58 am
Why think so small? The goal should be to eliminate the Senate altogether. It would be anti-democratic even without the filibuster. The fact that there is a legislative body where South Dakota is as powerful as California is ridiculous.
Also, if we just had the House, the entire legislative branch would be dominated by high-population coastal states that produce more liberals and more Democrats. Therefore, we would get better government and fairer laws. I don’t think you should overlook that partisan advantage.
January 6th, 2009 at 12:54 pm
At a minimum, the Republicans should be stripped of the right to filibuster judicial appointments, which is what they effectively did to us.
The change will necessarily work the other way too; Democrats will not be filibuster Republican nominees. You can’t just have an one-way street.
if we just had the House, the entire legislative branch would be dominated by high-population coastal states that produce more liberals and more Democrats. Therefore, we would get better government and fairer laws.
I hope you are being facetious. This sort of partisan gerrymandering is the exact reason Congress is in the hole it is in.
January 6th, 2009 at 2:56 pm
. A determined and united government can in theory override them with the Parliament Act, but it happens much less often than you’d expect.
It’s only happened 7 times in 98 years –
1) Welsh Church Act 1914
2) Home Rule Act 1914 (which never went into effect because of WWI and was later superceded)
3) Parliament Act 1949
4) War Crimes Act 1991
5) European Parliamentary Elections Act 1999
6) Sexual Offences Act 2000
7) Hunting Act 2004
That seems like a pretty serious veto point to me.
January 6th, 2009 at 3:05 pm
Let me add that Britain in the 18th and 19th centuries became the most wealthy and powerful country in the world under a system with a lot of veto points: the King and the House of Lords used to matter.
There was also little party discipline until the 1880s, so the House of Commons was also a veto point. There were frequent minority governments, for instance, and a fair number of governments that did not have stable majorities. And there was always the risk not only of members of your party not supporting you on individual votes, but of them splitting altogether and aligning themselves with the opposition. Even after the 1880s, the Liberals, at least, could not govern as they pleased because, with the exception of their 1906 landslide, they were unable to get a majority in parliament and their governments of 1886, 1892-1895, and 1910-1915 were dependent on the support of the Irish Nationalists.
Then, after WWII, you had effectively a three party system, where the 1923 and 1929 elections, at least, did not result in any one party getting a majority (although the 1922 and 1924 elections did), leading to minority Labour governments. And then for most of the 30s there was a coalition, numerically dominated by the Conservatives, but including like-minded Liberals and Labour party members.
It’s really only since World War II that you’ve had a real two-party, heavily whipped, high party discipline, system in Britain.
January 6th, 2009 at 11:41 pm
Well let me add that the ignominious dependence on the Irish-nationalist terrorists was the beginning of the decline of the British Empire. For example, accepting the Irish Free State during the Great War to appease the Irish.
January 7th, 2009 at 12:42 am
If they can get sufficient popular support, they deserve representation in a democratic body, even if they are extremists. That is why it is so stupid to ignore Hamas in Gaza or necessarily the Taliban in Afghanistan. Democratic incorporation is a great way to moderate extremists. If you deny them access to legitimate political means, they will pursue illegitimate means.
I don’t know why you speak so poorly of Julian Simon. His main point vis a vis The Population Bomb was quite accurate. I mean, eventually oil will be very cheap because we won’t have any need for it. We’ll have moved on to better technology. And eventually the population will cap out at 9ish billion and start declining.
January 8th, 2009 at 6:42 am
Just a quick correction:
New Zealand is a unicameral westminster system that uses Mixed Proportional Representation, and First Past the Post Voting – and yes the result is often described as a mess.
Australia is a bicameral westminster system that uses Direct Representation in both houses, and Proportional Voting – the result is a stable 2 party lower house, and a mix of major, minor, and independents in the senate; I’m not sure how it could be considered ‘a mess’.
I must admit that I am at a loss as to why at least one American state doesn’t use Proportional Voting – it renders moot vote splitting and several other voting pathologies.
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