Tuesday, February 9, 2010

The Politics of Filibuster Reform

Jonathan Chait, filibuster opponent, holds out hope for bipartisan filibuster reform:
The fairest way to abolish the filibuster is to set the abolition for some point in the future -- at least four years, and perhaps eight, so that neither side can be sure which party will benefit.
He implies that it's more likely to happen during a future Republican-controlled Senate, because as he notes plenty of liberals opposed the filibuster when Republicans threatened the nuclear option a few years ago.  But while it's fair to point to the intellectual consistency of liberal writers, Democratic Senators aren't going to listen to those voices in this hypothetical future; they're going to listen to those who demand that they stand strong against Republican policies and nominees.  Those Democratic Senators will be no more interested in intellectual consistency then than Republican Senators have been over the last year.

No, filibuster reform will not happen because Democrats and Republicans realize together that it's bad for the nation to have the Senate barely functioning, and decide to find a fair way to fix it.  That's not what's going to do it.  Remember why the Senate works the way it does in the first place.  Over in the House, because their districts are relatively homogeneous and because a lot of coordination is necessary in any group of over 400 people, individual Members are willing to trade away most of their influence over most issues in exchange for additional influence over a narrow issue area.  Consequently, House committees are relatively strong, and so are House parties, although the relative strength of committees and parties have varied over time.  What's constant is that Members of the House seek to empower institutions of coordination.  But Senators are unwilling to give up influence over a wide range of issues because their "districts" tend to hold a wide range of interests.  And they don't have to cede influence to coordinating institutions, because the smaller size of the Senate doesn't force them to do so.  The result is that both party and committee structures are weaker in the Senate, and individual Senators remain more important within their body than individual Members of the House are in that chamber.

OK, what then would get Senators to override their normal incentive structure?  One possibility is if majority-party Senators either think of themselves primarily as partisans, or have incentives to act primarily as partisans.  If that's the case, they may be willing to sacrifice their own states' interests in order to achieve partisan goals.  I think that's what almost happened during the Bush years.

But another possibility is stronger: if minority party Senators abuse Senate procedures to the extent that majority party Senators feel that their individual interests are threatened.  I think we're getting close to that now.  That's one of the risks of a pure rejectionist strategy; majority party Senators may eventually feel that they have little to lose by changing the rules.

If the rules are to be changed, then, I think the most likely form is through a majority party diktat.  Republicans talked about a ruling of the chair that filibusters against judicial nominations are against the rules; Democrats now talk about a ruling of the chair at the beginning of the next Congress that would pave the way for reform with majority votes.  The truth is that whatever a neutral reading of the rules of the Senate might be, a majority bent on reform could probably bully it through.  They would have to be willing to live with the public opinion reaction, but in my view that would probably not be very strong or long-lasting.  They would also have to live with the parliamentary tactics tactics the minority would use in response.  Yes, the minority could start dragging their feet on everything.  But obviously that threat holds less power if the majority believes that practically everything is already being delayed.  And once the rules have changed, the minority will risk being exposed as whining spoilsports if they persist for long in forcing, for example, bills to be read in their entirety.  Because of that, I do think it's possible that a minority faced with a majority threat of a nuclear option may choose to compromise and accept some reform, without eliminating the filibuster altogether.

The last question is when such reforms are likely.  I think it will require unified government; during times of divided government, it doesn't matter much if the Senate needs 60 votes.  Of course, if a party ever achieves 67 votes, reform is likely, but getting to 67 seems very unlikely.  On the other hand, parties with 60-66 votes don't really need filibuster reform, so they're unlikely to seek it.  And parties with slim majorities in the Senate are unlikely to have a solid majority for reform.  It also seems unlikely that a party just taking power would immediately press the button, since they would have spent their time out of office singing the praises of the filibuster (and because most new minorities at least pretend at first to be cooperative).

It's no surprise, then, that the nuclear option was on the table in 2005: conditions could hardly be better.  That majority had 55 -- too few to easily get cloture, enough (or almost enough) to realistically threaten a majority for bullying through reform.  Republicans had unified government, and while Bush wasn't especially popular, he wasn't yet as unpopular as he soon would be.  The only similar Congress during the entire high-filibuster era was Bill Clinton's first Congress in 1993-1994, and by the time Democrats realized what they were facing they were also too unpopular to risk the move.

OK, what does that mean?  I can think of two scenarios that might wind up with a nuclear option.  The most likely goes like this: Democrats lose several Senate seats in 2010, but then rally and re-elect Obama and increase back to 55-57 Senators in the 2012 elections.  Democrats then threaten the nuclear option at the start of the new Congress in 2013.

Or, Republicans take the presidency and slim control of Congress in 2012, and then add to their majorities in 2014, giving them 55 or so Senators, who promptly threaten the nuclear option for January, 2015.

(Less likely based on what we know now, but it would fit so I have to include it: Democrats and Obama have a very good second half of 2010, with the Dems ending the year with 57 or 58 seats in the Senate and large leads in the polls looking forward to 2012.  That might push them to threaten the nuclear option in 2011).

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