Why Democrats Love the Filibuster
I think some substantial portions of this post from Tyler Cowen are off-base, but point six I think is correct:
There is a reason why the Democratic establishment does not, as Matt Yglesias so often recommends, abolish the 60+ requirement. Often they prefer inaction, combined with the ability to blame the Republicans for such. See #4. The often-sad truth is that the Democrats as a whole prefer to tailor policy to pander to their “worst” members.
I don’t think you need to appeal to the idea that people prefer to pander to the caucus’ worst instincts so much as simply the fact that legislators prefer to do nothing at all. The supermajority—and, more broadly, the extreme difficulty of moving legislation—makes it easier for elected officials to make contradictory commitments to various people. Consider that as long as Democrats clearly didn’t have the votes to pass the Employee Free Choice Act, they could promise labor law reform to unions while also reassuring business that no such law was going pass. After the election suddenly there were sixty members who’d promised to vote for EFCA, which created an awkward situation for those members who, in fact, preferred to do what business wanted and killed it. They had to flip-flop in a not-very-pretty way and anger a lot of people. If it took 67 votes to move a bill, they would have been in much better shape, loyal friends to Wal-Mart and the AFL-CIO alike.
This kind of thing is why I think it’s important to pay more attention to institutional and process issues than most people do. We’ll never elect a legislature of angels, but people’s incentives and desires can play out in better or worse ways according to the context.
28 Responses to “Why Democrats Love the Filibuster”
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June 22nd, 2009 at 1:06 pm
Excellent point. I never thought of the filibuster rule that way, but it makes a lot of sense.
June 22nd, 2009 at 1:09 pm
Also, while a juicy issue is still being lobbied and debated, you can take massive bribes—er, campaign contributions from all sides.
But once something is passed into law, one way or the other, you have to find a different juicy issue…
June 22nd, 2009 at 1:13 pm
Not really on-topic, but I wonder why Democrats always pick such vulnerable Senate Majority leaders – scared to death of conservative voters in their own states. Daschle got beat, and now Reid is in danger too. Why can’t Schumer or Kerry lead the Senate?
(I’d rather have Sanders, but well…)
June 22nd, 2009 at 1:26 pm
At some point progressives are going to have to accept that the Democratic party is way to the right of them.
The only way to move our politics to the left is at the primary phase. And for that to happen, more people need to understand the issues. The public conversation needs to move away from the latest George Will or Krauthammer column to the real issues.
Progressive bloggers could help a lot by refusing to cite rightwingers and instead post liberal analyses. It is a fact that repetition is the single most effective persuader of humans.
June 22nd, 2009 at 1:31 pm
From Senate Rule 22:
“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
In other words, if you’re trying to change the Senate rules, you need 67 votes to break a filibuster blocking the attempted change, instead of the usual 60. So since the 60-vote requirement is a Senate rule, you need 67 votes to end the 60-vote requirement.
So it’s not like the Dems even have the opportunity to dispense with the requirement. I suppose they could net a pickup of another 7 Senate seats next November, but that’s too much to expect. Best we can hope for is one Congress in 2011-12 where major legislation won’t be subject to the whims of just a few recalcitrant Democrats.
June 22nd, 2009 at 1:41 pm
Ron, that’s not true. If we started refusing to support conservative candidate in the general election and let a few of them go down, then you’d start seeing even the most conservative Democrats becoming more amenable to progressive policies.
We’ve got 60 votes and nothing is getting done. We may as well cost a few people there seats and get nothing done with 55 instead.
June 22nd, 2009 at 1:42 pm
I still say that it’s not so much Democrats or Republicans that have fondness for the filibuster it’s U.S. senators, in general. With the filibuster in place each senator needs to be pandered and placated. It raises each individual’s status, and that’s a very precious commodity to a United States senator.
June 22nd, 2009 at 1:43 pm
Not quite. You don’t need 67 Senators to change the Senate rules. You just need 2/3s of a quorum (which will be 51 Senators when Minnesota finishes up).
The intriguing difference in the clauses, between “duly sworn”, and “present and voting”, has a vital history: it’s the distinction between the old, romantic image of the filibuster where some small minority, even a single Senator like LaFollette (or a racist like Thurmond, even an eccentric like Long) would stand against the majority as long as he could, and the modern filibuster, which is just pointless.
But if Franken decided to try to change the Senate rules to allow simple majority rule, all he would have to do is hold the floor and prevent a vote until he and two-thirds of the Senators “present and voting” favored it — which could be as few as 34.
June 22nd, 2009 at 2:01 pm
In the State of New York, Republican control of the State Senate was so indispensable for the strategy of the state Democratic Party, that on both occasions the Democrats wound up in control of the State Senate (1964 and 2008) they simply gave it back to the Republicans.
Walter Karp’s “Indispensable Enemies” is really essential reading to understand these mysteries of American politics.
June 22nd, 2009 at 2:05 pm
Maybe some of them want it to be around for the next time they’re not in the majority—a few years back I was very glad that the rule was in place….
June 22nd, 2009 at 2:05 pm
theAmericanist – I stand corrected. Thanks!
June 22nd, 2009 at 2:06 pm
Soullite-
I’m not sure we disagree. I would rather see conservative Dems lose to liberal Dems in a primary than to Republicans in a general.
June 22nd, 2009 at 2:35 pm
The point on which theAmericanist corrected me raises an interesting wrinkle in the blogosphere conversation from last year about why “make ‘em filibuster” wouldn’t work.
Summarizing the basic points from last year:
1) Senate rules allow for debate to go on until everyone’s had their say, then when everyone’s shut up, a vote is held.
2) Cloture is merely an exception to that rule: if 3/5 or more of all Senators are ready to tell the minority to shut up, they can do so, and bring about a vote, even if the minority still wants to keep debating.
3) So proponents of “make ‘em filibuster” (including me) argued that the GOP should be forced to maintain their filibuster, because they’d either have to keep talking, or allow a vote to happen.
4) But that overlooked a key point: when the GOP stopped talking, the Dems would need a quorum either in the chamber, or ready to show up from cloakrooms and nearby offices at a moment’s notice. Otherwise, a quorum call would come up shy, and no vote could be held. Meanwhile, it would only take a few Republicans, speaking in turns, to tie up those 51 Dems.
And that pretty much ended “make ‘em filibuster.”
But suppose 51 Dems actually wanted to change the filibuster rule itself? Then there would be sufficient reason for them to lie in wait and make the GOP talk talk talk all night. Because now, if I’ve got this right, their presence would require 26 Republicans to stay around, in order to prevent the rule change.
Tabling a bill is a privileged motion under Rule 22, so the Dem chairing the Senate during this filibuster could accept a motion to table the bill being filibustered, and once tabled, he could then presumably bring a motion on a rule change to the floor. And even if the Republicans walked out, the 51 Dems would still constitute a quorum, so they could vote to end the filibuster, unless there were at least 26 Republicans there to prevent it.
So IF (a big IF) I understand the Senate rules correctly, the Dems could inconvenience a lot of Republicans, and not just a few of them, by making them filibuster – as long as they were prepared to do away with the rule entirely.
Since I found out I’d overlooked a key weakness in the original logic for making the Republicans filibuster, I wouldn’t be surprised if I’m missing or misreading something now. So: what’s the hole in this argument?
June 22nd, 2009 at 3:02 pm
So: what’s the hole in this argument?
The hole is that all you’re accomplishing by trying this is to inconvenience both sides at once. If your plan is to keep 51 Democrats on the Senate floor indefinitely, do you really think Republicans would give up their only method of relevancy by letting them do it? They would stay there just as long as the Democrats would, and probably be able to outlast since they only need 26 there and could sleep in shifts. So basically you’re creating a big media spectacle in which Republican talking points would dominate every pundit show (as they generally do) and you’d get a bunch of mainstream media reporting about how Democrats were trying to change the rules and shut down opposition viewpoints in violation of the Senate’s long and storied history so they can ram through legislation.
Which would all be fine if you could actually change the rules. But I don’t think you could outlast a very determined Republican minority.
I think the better idea, from a media relations perspective (which is what matters here as there’s no actual way other than public pressure to accomplish this) is to make them talk while keeping 51 Democrats in the chamber the whole time. It would look pretty bad to have teams of rotating Republicans talking 24 hours a day while a majority of the Senate is sitting there waiting to have a vote on something they have 51 votes to pass. Whether looking really bad is a sufficient deterrent to Republicans I’ll leave for you to decide.
Also, note that you have to pass cloture twice: on the motion to proceed as well as on the bill itself. And there’s 30 hours of talk allowed from each one.
June 22nd, 2009 at 3:06 pm
Everyone forgets about the “nuclear option”. Back in 2005 Bill Frist almost used it. The filibuster can be declared unconsititional a point of order is called and if a simple majority vote for it the rule is changed.
It was decide by the Supreme Court that the senate can rewrite its rules with a simple majority. If the Democrats wanted they do have the power to eliminate it now.
June 22nd, 2009 at 3:35 pm
If the Democrats wanted they do have the power to eliminate it now.
This is true. But doing so would be a major, major change in how the Senate operates. Almost all Senate business is done by tons of unanimous consent requests, and so a general spirit of cooperation among everyone has to exist or the entire Senate grinds to a halt. I don’t think anyone knows what the ramifications would be if they were to do this.
I don’t think this would get 51 votes, though, for the simple fact that Senators are generally conservative people, in the traditional sense that they aren’t particularly big on change, especially a change as radical as this one. With 51 people like Sanders, sure, but that’s nowhere near the Senate we have.
June 22nd, 2009 at 3:35 pm
There are two core problems — time and discipline.
Time, because you couldn’t exhaust the opposition in anything less than days if not weeks, and discipline, because to win this could ONLY be about one thing — something both very popular for a majority, and very UNpopular and politically difficult for even Senators who can get re-elected opposing it, to actually STOP. Opposition to civil rights only slightly damaged the tactic, after all, while its contemporary incarnation has little to do with anything that a series of difficult votes wouldn’t settle. The obviously racist obstruction offered by the likes of Thurmond in the 50s DID help, in the long run, to show that there was nothing to civil rights opponents, that it was all reactionary sour grapes (witness the LBJ landslide over Goldwater), but that took time.
Discipline, because a modern attempt to change the rules like this wouldn’t be focused on the rules as such, except as a means to an end: universal health care with a public option, for example: it’s got to seem like David vs. Goliath, with the little guy forcing the big guys to take a tough vote, but THEN — the tough vote has to turn out to be pretty easy, with a substantial majority of the voters (if not of the unrepresentative Senate) for it.
Hard to do that with modern media.
But I didn’t mean to imply this is the ONLY way in which the Senate rules can be changed during a session of Congress. The Senate (like the House) adopts its rules right at the beginning, and everybody agrees to abide by ‘em throughout debate — so changing ‘em in the middle of a session is a difficult (and politically vulnerable) thing to try.
But it has nearly happened several times, generally on motions to appeal the rulling of the chair — the so-called “nuclear option”. That is, there are issues on which a majority can be frustrated by a minority and/or the leadership, e.g., on germaneness (not just nominations), and when they lose (as in the ruling of the chair), that ruling can be challenged and overturned by a simple majority — WHICH in the context of Senate debate would be a very big deal, cuz it would mean the rules mean only what 51 Senators want ‘em to mean at any given time.
But by “time and discipline”, I meant something else — IF there was a sufficient core of Senators who wanted to kill the filibuster, without waiting to persuade the leadership (fat chance), a motion to alter the Senate rules could be useful.
Just to pick on Franken, for whom this would be very high stakes indeed — if he were to go to Byrd, say, and express his admiration for the old man’s mastery of the Rules, AND add that he disliked the changes to the filibuster that began with Byrd’s epic fights with Abourzek in the 70s (when the filibuster changed from a rare obstructionist exercise fought over big issues, like entering WW1, and became a time-wasting tool over relatively minor economic differences, and finally sheer trivia), it is not impossible that Byrd would appreciate his respect and give him good advice.
After that, the way to do it would be to pick an issue, and use the current rules to control the floor whenever that issue is to be brought up, BECAUSE Franken (just to pick on him) wants a particular piece of legislation with majority support to pass, but it cannot because it can’t get past cloture.
So Franken insists that whenever that piece of legislation is to be debated, his proposal to amend the rules will be in order — and thus, Republicans (or other opponents of BOTH the measure Franken wants to pass, AND of changing the Senate rules to let that happen) would have to keep at least 27 Senators “present and voting”, which isn’t as easy as it sounds, since it would be up to the Senate majority leadership when these debates with Franken’s rulechanging amendment in order would happen — say, live in the Senate some Saturday Night.
‘Course, to do any of that would require the active support of the Majority Leader, who has presumptive right to the floor at all times other than under a floor agreement — which is what this would require, and which the Leader could (and probably would) withhold.
June 22nd, 2009 at 3:55 pm
What “contradictory commitments”? Their only commitment is to the Fat Cats, the Big Money. All of them, no exceptions.
June 22nd, 2009 at 3:56 pm
I think the root desire for inertia and double-talk explains some of the Democratic love for the Filibuster, but at heart I think this is mostly about individual influence.
With a 50-vote requirement, it’s harder for a Senator to wring concessions for favored interests in exchange for a vote. The majority leader can just circumvent some of the least cooperative members of his own caucus and choose to negotiate with someone else. With a 60 vote requirement, he has to cater to every single one of his member’s whims and reach out for a few votes on the other side.
June 22nd, 2009 at 4:00 pm
Adam replies: The hole is that all you’re accomplishing by trying this is to inconvenience both sides at once. If your plan is to keep 51 Democrats on the Senate floor indefinitely, do you really think Republicans would give up their only method of relevancy by letting them do it? They would stay there just as long as the Democrats would, and probably be able to outlast since they only need 26 there and could sleep in shifts. So basically you’re creating a big media spectacle in which Republican talking points would dominate every pundit show (as they generally do) and you’d get a bunch of mainstream media reporting about how Democrats were trying to change the rules and shut down opposition viewpoints in violation of the Senate’s long and storied history so they can ram through legislation.
I don’t think that’s a hole. The point of “make ‘em filibuster” was to, ideally, break the filibuster, but failing that, impose a high enough cost to filibustering so that the minority got a bit more reluctant to filibuster at the drop of a hat.
But if the inconvenience of a filibuster is only going to be felt by two or three Republicans, that’s going to be a pretty small cost, even if you didn’t have to have 85% of the Dems stick around to force the filibuster.
However, if 85% of the Dems can impose a serious inconvenience on 70% of the Republicans, that changes the calculus considerably. (We’d still have to be in a world where the Dems were up to a bit of hardball, as opposed to the universe we’re in, but bear with me.)
Second, the point about GOP talking points on the issue filling the airwaves: the Dems would obviously have to choose their issue well. Two years ago, the minimum wage hike would have been perfect; this year, SCHIP expansion would have fit the bill. But the Dems would have to pick something where the more exposure the GOP talking points got, the dumber the GOP looked.
Finally, the mainstream media reporting about how Democrats were trying to change the rules: why would they have any inkling? The point here is that the implicit threat exists, just sitting there in the rules, and the GOP ignores it at their own peril. Either they see the threat, and show up in force anytime the Dems force them to back up a procedural filibuster with actual talk, or they risk having the Dems suddenly end the filibuster on them with no warning, but in a manner that the Senate rules seem to say is perfectly kosher.
That’s as far as I’ve read in the thread; gotta get back to work. Back later.
June 22nd, 2009 at 4:29 pm
I love the irony of calling a law that replaces secret ballots with public votes a “free choice act”.
Here’s a modest proposal: Let’s change the elections for the Senate and the House to operate that way. If it’s a good idea for unions, it should be a good idea in general.
June 22nd, 2009 at 4:48 pm
James Robertson — Should we also change the votes WITHIN the Senate and the House to be secret ballots, just to be extra-free? I mean, surely no harm could come from public representatives having the freedom to make decisions in secret and have the ability to tell one audience that they voted one way and another audience that they voted another way.
I mean, naturally, people should be able to keep all of their business decisions secret from investors, co-workers, and government officials, right? Secrecy in the office is a basic human right! Or something. God forbid anyone in American business be expected to contribute on the record to an important decision.
June 22nd, 2009 at 8:06 pm
Actually, changing the votes of the senate and house to secret might make for better results. Doesn’t mean I favor it though. For union authorizations, are you seriously saying that open votes, easily creating intimidation opportunities for both union activists and management, are a good thing?
June 22nd, 2009 at 8:19 pm
Nate S. @7 says,
With the filibuster in place each senator needs to be pandered and placated. It raises each individual’s status, and that’s a very precious commodity to a United States senator.
This seems like it can’t be right, mathematically speaking. If the filibuster raised each Senator’s status, then it has make the Senate a higher-status institution that it would be without it. Status *within* the Senate is relative–if Evan Bayh’s status improves relative to other Senators, then the other Senators’ status worsens relative to Evan Bayh’s.
The filibuster in fact raises the status of whichever Senators are the ones on the edge of a 60-40 supermajority, and lowers the status of Senators on the edge of a 50-50 plain-ol’ majority. Without the filibuster, Jim Webb and Jon Tester would be more heavily pandered to; with the filibuster, Ben Nelson and Olympia Snowe are pandered to. The filibuster also lowers the status of Senators in the majority generally. If Barbara Boxer and Bernie Sanders wanted to write a bill, in a filibusterless Senate, they could write it more to their liking and not have to compromise as much with Evan Bayh and Mary Landrieu.
June 22nd, 2009 at 9:26 pm
Jason L is halfway right — the truth is that the Senate is particularly susceptible to the cliche distinction between show horses and work horses.
With only 100 of ‘em every Senator learns in their first term that they cannot afford to create real enemies among their colleagues: sooner or later, they’re going to need the vote of even the Senator who is least like them. That’s the real motivation for the elaborate courtesy, and the mutual solicitousness that outsiders assume is utterly fake or worse.
But if somebody needs to be the 60th (or 40th) vote to be maximally effective — that means they’re generally NOT effective. Some stats maven could probably figure out by voting records how often the most effective Senators vote with 55 (or 45) of their colleagues, and how rarely they are on the losing end of a 75-25 vote. It’s an institution that lives in the middle of the road — hell, it’s what it is FOR.
That’s why the true master of the ancient filibuster was Huey Long, who realized when he got to the Senate that he didn’t have the patience (or the interest) to gain power by accumulating chits and seniority: so he never went to committees, he just sat on the Senate floor and learned the rules.
If rule by a simple majority was restored to the Senate, people would rediscover the wisdom of the late Senator Kerr of Oklahoma: “I’m opposed to any deal — that I’m not in on.”
June 22nd, 2009 at 11:08 pm
I still can’t figure out why 51 Senators should be able to decide stuff in the Senate. We all know that 51 senators could represent much less than 50% of the population. The truth is that everyone that argues against the filibuster and for 50+% majority rule is uninterested in state representation. But they can’t admit it. Admitting that states should have equal representation at some level would destroy their argument. So they go way beyond 50+% representation and argue for 51 votes in the Senate, which could be minority rule.
They also forget that a filibuster only applies to one vote, it still takes at least 51 senators to pass any legislation.
June 23rd, 2009 at 12:22 am
A friend of mine – an extremely senior & powerful (foreign) politician – is fond of saying: “Sometimes it’s to my benefit to make a thing happen; sometimes it’s to my benefit to enable it not to happen.”
June 23rd, 2009 at 5:49 am
This is why right thinking progressives were hoping for the nuclear option Nelson Lieberman Byrd Landrieu Inouye and Pryor can suck my balls.