Matt Glassman is a filibuster defender, and he made a good case earlier this week. He boils his argument down to:
1. The Senate is malapportioned. Removing the filibuster will not ameliorate this, and may exacerbate it.I agree, at least to some extent. One key point here is that the current House is not a majority-rules legislature; it's a Majority Party rules legislature. That's the important point about minority amendments in his second point.
2. A majoritarian Senate will operate, functionally, like a second House of Representatives. This has real, knowable costs, such as the foreclosing of minority amendments that could carry a floor majority, and the disappearnce of the compromise that such amendments now foster.
3. Following from 1 and 2, there’s no ex ante reason to think trading in the status quo Senate for a small, malapportioned House with six year terms would improve American democracy.
Which gets back to what I've said many times: majority vote is a convenience that we usually use in a democracy, but majority rule isn't democracy, or at least not a very good version of it. Democracy, properly speaking, is rule of the people, not rule by the majority.
Where does that leave us? It means that we shouldn't worry too much about majorities getting ripped off in the Senate. But we also want a Senate that can function well within a party system (and, generally speaking, parties are a very good thing when it comes to democracy for lots of reasons). In my view, we want to try to preserve the advantages of the Constitutional system, which include that individual Members of Congress can really be serious lawmakers. And, yes, when intense majorities do form, we probably don't want them thwarted, certainly not indefinitely, and certainly not from indifferent minorities. I'm not convinced that the current system does all that.
All of which gets me to my usual reform proposals, including Superbill! Maybe I'll write more about that tomorrow.
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Filibuster reform is easy - make these people actually talk for the duration. Currently, a senator just has to say the word and take no action to impede legislation. Make the use of the procedure come with a cost and see how it shakes out.
ReplyDeleteSorry, no. See the link in the right margin for "Live" Filibustre.
DeleteA more important difference would make the 41 Senators actually show up and vote nay. Of late, they've won by not showing up at all...
DeleteThese are important, well-stated points. In theoretical terms, the issue remains arguable what shape filibuster reform should take. But as far as I can tell, none of our existing actual senators are resisting filibuster reform for these reasons, because they have some theory of democratic legitimacy with the interests of rule by the people at heart. So I don't know where this leaves us. When reform fleetingly came up, most Democratic senators just seemed like dense or close-minded egotists, in love with inertia.
ReplyDeleteThe basic vibe among the Democratic senators seemed to be that they'd appreciate not having the ordeal of doing stuff, if they could help it. Even the Democratic senators who did occasionally discuss reform never really made an open push for it or try to pressure their colleagues by increasing the public salience of the issue.
DeleteYes; I'm looking for a good theoretical argument for what would be a good idea; I agree that's a completely different story from why we might or might not get reform.
DeleteI'd say that the main reasons that majority party Senators resist reform are (1) the current Senate empowers individual Senators, and (2) fear of being in the minority.
Is it really true that doing away with the filibuster would lead to a majority party rules legislature like the House? The last time filibuster reform was discussed, I recall seeing a lot of graphs showing the sharp increase in the use of the filibuster from the 80's to now. Wouldn't a return to a Senate where the filibuster isn't used (now, bc it's not available, previously bc of norms) really a return to a Senate pre-1980's (or whenever filibuster use began to intensify)?
ReplyDeleteOr is the contention that the threat of filibuster is what allowed amendments fostering compromise to reach the Senate floor?
I'm definitely open to your argument, JB, and being a long-time reader I fully support the Superbill idea. I'm just trying to figure out if doing away with the filibuster really would lead to a Senate that looks like the House.
Good point. A Senate without a 60 vote supermajority requirement isn't a hypothetical. And it isn't the same as the House.
DeleteBut the pre-filibuster Senate was also a Senate with much weaker parties than we have now, and with observed norms that empowered individual Senators. I mean, part of this is what we mean be eliminating the filibuster. Would you just move the cloture requirement down to a simple majority? Or would you scrap the whole cloture thing and institute some sort of fixed rules for considering bills, and if so how are amendments to be handled, etc.?
DeleteA Senate without a filibuster is a supreme court with a Bork.
DeleteThat's fascinating, given that Bork was only able to get 42 votes in favor of confirmation.
DeleteI'm of the general opinion that the McConnell filibuster has broken the Senate. We haven't really seen the effect or the new norms because the 111th got a lot done (because they had, or nearly had, 60 votes) and the 112th is back to divided government.
ReplyDeleteBut with strong parties and where the minority can control the agenda, it's hard to see how non-trivial legislation ever gets passed.
The simplest "fix" would be to eliminate the various cloture "ripening" requirement. Keep 60 votes for cloture. But require a Senator to actually hold the floor and speak during their "filibuster".
So, if the minority really, really wants to stall some legislation they can. They can get up there and read position papers or the phone book for as long as they want. But an actual, elected, US Senator has to get up and do it.
This would add a non-trivial cost to a filibuster and preserve the norms of the Senate. The tactic will be used when something is a big deal and it'll be plain who is causing the obstruction. But it won't get used for each and every item that comes before the Senate.
No. As long as the minority is larger than, say, three Senators, then the cost to the minority is much smaller than the cost to the majority. Which is why the majority got rid of live filibusters in the first place. It's not a simple fix at all.
DeleteWhy not? The "filibuster" is used much more now than the "live" version ever was. The cost to minority has dropped to zero. So, they use it for everything. Why wouldn't they?
DeleteThe cost to the majority of the "live" version was that the minority could chew up time. But they couldn't block legislation. The filibuster had to stop eventually.
Under the current rules, the minority can chew up the clock and/or block legislation with no effort. The filibuster costs the majority everything. They can't introduce legislation. The can't offer amendments. They can't confirm appointments. They can only function as a legislative body when the minority give them permission.
I'm not sure how the cost could get higher than that.
The part you're wrong about is "the filibuster had to stop eventually." That's not true; it doesn't. And, yes, the Senate normally works by unanimous consent, but even now that does happen. Tie up the floor in a forever filibuster, and it really can't.
DeleteJonathan, I don't understand your reasoning on this either. Could you explain how it costs the majority to require the minority to speak continually during the filibuster? Is it because their attendance is required to break it in the end?
DeleteLet's say the rule was that your speech can be interrupted by a call for "cloture" and 60 votes ends debate. But if there isn't 60 votes you can talk as long as you want. But when you're done then the votes happens, unless someone else rises to speak.
ReplyDeleteHow different is that from historical norms?
What would be the implications of live filibuster rules on legislation like say, the Buffet Rule? The minority might choose to filibuster it. But then isn't that a big story? Doesn't the headline go from "GOP blocks Buffet Rule" to "Buffet Battle! Sen. Kelly Ayotte takes the floor for the 4th straight day and speaks for 6 hours about the terrible tax millionaires." The minority has to eat the publicity and do the personal endurance test of talking forever with no guarantee of success.
It seems like that would change the dynamic and incentives quite a lot.