Matt Yglesias

An Easy Way to Avoid Budget Reconciliation Shenanigans: Don’t Filibuster

There’s an article in The Hill by Walter Alarkon about how legislators who actually want climate change legislation to pass are hoping to work through the budget reconciliation process to avoid filibusters, but that some moderate Democrats don’t like that idea. I’m quoted in the piece, but I think I could possibly have been clearly.

The point is that insofar as the concern of Senators like Ben Nelson and Mark Pryor is really about the integrity of Senate procedure, the holy awesomeness of filibustering, and the sanctity of the budget reconciliation process there’s an easy solution—all 59 Democrats could simply promise not to filibuster a climate change bill. They wouldn’t need to vote for it. If Nelson thinks it’s a bad bill, he should vote against it. If Pryor thinks it’s a bad bill, he should vote against it. If Mary Landrieu thinks that her constituents benefit more from a vibrant oil and gas extraction industry than they suffer from catastrophic storms, then she should vote against it. But nothing is forcing those Senators to erect procedural hurdles to prevent the bill from coming to the floor. Then it would be a question of whether or not the bill’s sponsors could get the support of one or two Republicans, bring the bill to the floor, and then pass it with more than 49 but fewer than 60 votes. And to be clear, this is how the filibuster used to work. Tossing procedural monkey-wrenches into the works was an option available to a determined Senate minority, but it wasn’t an option that was exercised as a matter of course. Discretion was applied for the sake of democracy, for the sake of one’s colleagues, and to prevent rabble-rousers like Matt Yglesias from insisting that the option needs to be done away with entirely. It’s only very recently that the understanding has been changed to one in which there’s a formal super-majority requirement for all legislation.

My preference would be to eliminate filibustering altogether. Absent that, I’m for moving as much as possible through the reconciliation process. But Senators who genuinely want to preserve the old ways could best preserve them by actually returning to the old ways; which is to say allowing most legislation to come to the floor even if you intend to vote “no” on the bill.

How the Filibuster Helps Democratic Senators

One thing that it’s important to understand about the role of the filibuster in the legislative process is that while it’s bad for the country and good for the minority political party, it’s also good for the individual members of the majority party. When you look, for example, at the House of Representatives’ debate on the stimulus plan you’ll see that there were actually a number of Democratic members who weren’t on board for the leadership’s plan. But you didn’t really see them on TV or read about them in the newspapers or hear about their ideas. Nor did you see the leadership making a big effort to change the plan to suit their needs. A really big bloc of majority party legislators can change a House bill, and senior members of the party who have leadership positions or chair important committees and subcommittees can change a House bill, but a few random members can just be ignored. Why? Because their votes aren’t needed. Nancy Pelosi can just say, “fine, vote ‘no’ if you want.”

But with a de facto 60 vote supermajority requirement in place in the Senate, not only do Senate Republicans have the ability to block all legislation and ensure that progressive policy is impossible, but each and every individual Democratic Senator can hold a bill hostage. So if Bill Nelson or Mary Landrieu or whomever has some kind of problem with the details of something, or some pet project they want, then the leadership has little ability to say no to them.

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.

Josh Marshall and the Filibuster

A few days back, Josh Marshall wrote:

It is just bad practice — especially in the face of the last eight years — for numerical majorities not only to use the power of their numbers in straight up votes but to change the rules of the game itself. Notwithstanding the fact that filibuster has been increasingly abused, it was wrong in 2005 and it would be wrong now.

I think this is backwards. The specific thing Republicans were trying to do in 2005, create a special “no filibusters of judicial nominees” rule, was silly. But the correct response, and I said so at the time repeatedly, was to propose to eliminate the filibuster altogether. The filibuster rule was a bad rule when it was used to block anti-lynching legislation in the 1920s, it was a bad rule when it was used to block civil rights legislation in the 1950s, it was a bad rule in 2005, and it’s a bad rule in 2008. Even absent the ability to filibuster the United States would still have an unusually large number of “veto points” at which potential legislation can be blocked, and there’s no compelling reason to add a supermajority requirement to senate votes.

What’s more, as Robert Farley observes the argument from tradition doesn’t really hold up. Traditional practice was for the filibuster to be broken out rarely as an extraordinary tactic. But over the past fifteen years or so, for some reason or another (perhaps related to the increased ideological coherence of the parties), it’s become more-and-more common so that we now speak of a 60-vote threshold as the ordinary hurdle for legislation to pass. Perhaps one can mount a defense of this de facto supermajority requirement on the merits, but it should be understood that routine filibustering is a very recent innovation and that eliminating the filibuster would leave us closer to our traditional practices.