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The Case for Filibustering; or, How I Learned to Stop Worrying and Love Mitch McConnell*

- September 23, 2009

[Sorry it has been a while. APSA and teaching and actual publishing intervened.]

The nice thing about studying the Senate filibuster is that it is periodically a hot topic, and civilians actually get interested in what academics have to say. Predictably, these bouts of relevance coincide with unified party control of Congress and the White House (1993, 2003-5, now) when filibustering is the last institutional barrier to the majority party’s agenda item. Filibustering has slowed several items on the 2009 Democratic agenda (the stimulus bill, FY 2009 appropriations, climate change) but it is health care that has progressives feeling the fierce urgency of now and despairing at the low prospects of a “strong” bill surviving the Senate gauntlet.

1) Health Care as a Hard Case
And they have a strong case. While the 2008 election was about many things (the economy, Iraq, race), no informed observer could deny that health care reform was at or near the top of the Democrats’ policy agenda. It was a critical point of comparison during the Democratic primary and prominently featured in Barack Obama’s fall campaign, e.g. it was the 3rd section of Obama’s Blueprint for Change (behind “Economy” and “Ethics”). While it would be a stretch to say that a majority of voters endorsed Obama’s health plan when they voted for Democratic candidates, this is as close to a mandate for action as our system permits.

And there is desperate need for health care reform. Despite the fact that 17.6% of our GDP is devoted to health care, 47 million go uninsured, receiving substandard care if any. How do we manage this feat? Not with more doctors or hospitals; the trick is lots of machines that go “ping.” And if we don’t restrain growth in Medicare spending, the critical question in health policy will become, “how many baby boomers can we fit on an ice floe?” Providing better care to millions of Americans while cutting back on health care spending means defying a deeply entrenched array of health-related corporations, interest groups, and skeptical consumers—not the sort of legislation that easily attracts Congressional votes.

Which brings us to the Senate. In short, it seems likely that there are enough votes to pass some elements of health care currently under consideration (e.g. preventing insurance companies for excluding patients for preexisting conditions) but not a “public option,” i.e. an insurance plan offered directly by the federal government in competition with private insurance companies. Progressives (including a critical portion of House Democrats) consider a public option critical to expanding coverage, cutting costs, and keeping insurers honest. Consequently, commentators have urged the Senate Democrats to consider options other than a standard cloture petition (again, cloture requires 60 votes) when they bring up a health care bill, including the budget reconciliation process (which would guarantee a simple majority vote), a prolonged “live” filibuster that would embarrass the Republicans if not wear them down, or cutting back on the right to filibuster.

I hope to discuss strategy for a health care bill in a later post. For this post, health care reform provides the backdrop for a discussion of the merits of filibustering. It is no challenge to defend filibusters against bad ideas, e.g. appointing Richard Cheney to the Supreme Court. The real test for political institutions is whether we still value them when they are inconvenient. For clarity, I shall compare filibustering in its present form to simple majority rule (conditional upon the presence of a quorum, of course).

2) The Generic Case Against Majority Rule
One need not look far to find political thinkers doubting the wisdom of majority rule. To avoid rehashing 2,500 years of democratic theory, I shall confine myself to a quick summary.

a) Just because one side’s got more votes, that doesn’t make its position true. In this country, ending slavery, enfranchising women, and adopting federal minimum wage were all once minority positions—certainly that did not make them incorrect or immoral.

Of course, to make this argument is to beg the question, how shall we identify the best policy? If wise minds and patriotic hearts disagree, shouldn’t we give weight to the more numerous side? If the alternative to “majority rule” is “minority rule,” surely the latter approach violates the principle of equality between citizens.

b) The (fragile) conditions for majority rule. In the latter half of the 20th century, the implications of majority rule were a central theme of positive political theory. One classic work by Kenneth May listed “independent, necessary, and sufficient conditions for simple majority decisions.” While this article is sometimes cited as an argument FOR majority rule, it actually sets up a very narrow scenario for majority rule to be the best approach. Paraphrasing May (and ignoring condition #4), majority rule is preferable if it i) yields a stable decision, ii) each policy option is (and should be) weighted equally, and iii) each voter is (and should be) weighted equally.

Consider the last condition. For some policy questions, some voters have a deeper stake than others. Last November, Californians voted on whether to allow same-sex marriage; isn’t it fair to say that people in same-sex relationships had a deep, personal stake in the question while heterosexual voters had an abstract (and typically less intense) interest in the issue? In a perfect world, we might recognize this asymmetry and attach special weight to the preferences of intense voters.

Under some conditions, filibustering can reflect asymmetric intensity. For years, senators from Nevada filibustered against proposals to accelerate plans to store nuclear waste in Nevada. Obviously, these bills affected Nevada intensely, so I considered it fair that Nevada’s senators were able to make their case and slow (but not defeat) legislation to make Nevada the nation’s nuclear dump. In 2005-6, senators Murray (D-WA) and Clinton (D-NY) placed holds on nominations to force the FDA to decide whether “Plan B” contraceptives would be available without a prescription; filibustering enabled two intense senators to force a stubborn agency to do its job.

c) A Bias for Stability

Continuing with May’s conditions: majority rule is appropriate IF all policies are weighted equally. In practice, all policy options are not treated equally. Some options, like establishing a state religion, are forbidden. Others, like bills to increase taxes in the U.S. House, face a supermajority threshold to introduce a bias against change.

James Madison makes the case for policy stability in Federalist 62; all else equal we should prefer stable laws because “A continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.” Ceteris paribus, that is, we should prefer stability to avoid the effort of adjusting to new laws and the uncertainty of learning how new laws work in practice. Of course, that’s not an argument for doing nothing, but it is a case for bias for the status quo until a good case for change has been made.

3) What is a majority of the Senate?

The next three arguments are more specific to legislative settings.

Let’s say that nothing you have read so far has shaken your commitment to the principle of majority rule, so whatever most Americans think ought to be a law. How would you apply that principle to the U.S. Senate? As we all know, senators represent states of varying populations and serve rotating six-year terms, with at least one-third of all senators up for election every two years. Advocates on both sides of the debate can use the Senate’s malapportionment to their advantage: senators representing just 17.7% of the nation’s population can form a majority in the Senate, while senators representing less than one-sixth of the national population can defeat a cloture motion. While these are extreme scenarios, they highlight the tenuous relationship between a majority of the Senate and a majority of Americans.

Then, to state the obvious, there is no guarantee that the majority of the Senate were elected to reflect contemporary public opinion. Imagine, for the sake of argument, that the Republicans had won 51 seats in 2004 and 2006, but lost every Senate election in the 2008 cycle. The Republicans would constitute a majority of the chamber, but be clearly at odds with the mandate of the (hypothetical) 2008 election. We might justify this situation by saying that the Senate represents the “long term majority” or that it “ensures stability” in our system, but it would be difficult to make a simple argument that the majority of the Senate reflects the central tendency of public opinion.

4) Deliberation

In our polarized polity, it is easy to forget that legislators are more than voting machines with “D” or “R” stamped on their foreheads. In fact, a healthy legislature does more than vote. Its members talk, and propose alternatives, and acknowledge each other’s views. In doing so they can improve legislation, represent their constituents, and explain their behavior to each other and to the nation.

However, the majority party often considers open deliberation a waste of time or even DANGEROUS. United majority parties may consider deliberation a waste of time, since its members minds are made up; talking and voting just consumes time that could be spent on other legislation, or holding fundraisers, or flying home to visit constituents. Moreover, a central claim of rational choice analysis of legislative settings is that diverse coalitions (i.e. a majority composed of legislators with distinct preferences) will be susceptible to “killer amendments” or other attempts to amend a bill in such a way that some portion of the coalition supporting the bill defects and the bill is defeated.

Imagine, for example, that health care reform comes to the House floor under an open rule (any amendment allowed) and the Republicans offer an amendment setting up a single-payer government health care system. If the amendment is adopted by a coalition of sincere liberals ( who think a single-payer system is ideal) and strategic Republicans (who vote for a position contrary to their conservative views in order to defeat the bill), then the bill would probably fail on final passage; moderate Democrats and Republicans would oppose a single-payer system, leaving liberal Democrats supporting a defeated bill.

In the contemporary House, the majority party typically avoids these situations by carefully limiting the debate and amendments on key bills. The key to the majority party’s power is the ability of the Rules Committee to propose a “special rule” that governs debate on a specific bill and passes by a simple majority vote. In the Senate, the majority party has no such power; the majority party leader can propose the ground rules for debating a bill by unanimous consent, but the minority party can reject those terms and threaten to filibuster. The result is that the majority and minority party haggle over the process for debating major legislation to ensure that members of both parties are able to deliberate fully. Without the minority party’s power to filibuster, it is likely that the majority party in the Senate would be no more generous than its counterpart in the House.

The more open amending process in the Senate means that coalitions supporting a bill are tested by a variety of amendments—some of which may actually moderate the bill, or expand its supporters. It also means that the majority party has a tougher time keeping issues off the chamber’s agenda. For years, Sen. McCain and the Democrats repeatedly filibustered to force the Senate to vote on campaign finance reform. Their efforts drew attention to the issue and forced senators to go on the record so their constituents could hold them accountable. On balance, I prefer the broader range of issues considered by the Senate and fully-debated legislation the Senate produces.

5) Parties

The U.S. lawmaking system was designed to impose multiple barriers on attempts to change the status quo: laws need the approval of two chambers whose members (by design) are likely to approach policy questions differently, and the consent (or supermajority override) of an independent executive.

Then along came political parties. In their most benign form, parties are simply clubs of like-minded actors who coordinate action (e.g. deciding which bill to bring up on Wednesday, and which one to bring up on Thursday) without compromising their personal views or their obligation to represent their constituents. The earliest parties may have approximated this form, but they quickly took on two key features: a focus on elections, and party leaders capable of rewarding loyalty and punishing (or at least shunning) defectors.

A group of legislators running for reelection under the same party label has a collective interest to (1) follow through on promises from its last campaign, (2) defuse issues that give the opposing party an issue advantage (see prescription drugs, 2003), and (3) trade policy favors (or effort to achieve results) for electoral support—either the votes of swing groups or donations from pragmatic interests. But just because a party has a shared interest in passing legislation, that doesn’t make it in the interest of individual party members to back the party’s agenda…just ask Sen. Ben Nelson, or the Blue Dog caucus. As Gary Cox and Mat McCubbins point out in Legislative Leviathan, this can lead to collective action dilemmas in cases when less than a majority of legislators prefer to vote for a bill, but (at least) one party has a significant stake in its passage. In such cases, a party needs to be able to induce its reluctant members to support the team over their personal interests. While this can include a simple logroll over several issues (“vote for this bill now and other legislators will hold their noses and vote for your priorities later”), additional incentives are often used to shape legislators’ preferences leading up to key votes and to “buy” the last few votes needed for passage.

Some scholars focus on the formal inducements available to Congressional leaders: influence on committee assignments (or the lack thereof), perks like office space and overseas trips, or promising to bring bills up on the Congressional agenda. In addition, party leaders play a significant role in fundraising: donating to members from leadership PACs, visiting districts to speak at fundraisers, and signaling to party-affiliated donors which MCs need their donations the most.

But wait, there’s more. A political party is best understood as a network of autonomous but cooperating actors, and this network extends beyond Congress. Presidents have long been heavily involved in agenda-setting and vote-buying, using their power over executive patronage, Presidential visits, and other perks to build support for party measures. And there are informal party actors—party-affiliated interest groups like the AFL-CIO or Christian Coalition, partisan fundraisers, liberal bloggers, Rush Limbaugh—who can reward or punish legislators for their votes. As Joe Lieberman and Arlen Specter can tell you, there is a price to be paid for forgetting whose side you are supposed to be on.

Parties that set collective agendas and line up their members to vote for their bills can be a force for good—especially when they induce members to vote for measures that are in the national interest but unpopular in the short term. But they can also be an agent of corruption or NON-majoritarian action. Imagine if a corporation simply offered a party an enormous sum of money if the party passed legislation in the corporation’s favor. While there are more contemporary examples, my favorite such case is from the 1880s: a public promise of $1 million to both parties for passage of a bill to build a canal across Nicaragua. The calculation in such cases is frank: the electoral benefits of a donation outweigh the electoral costs of inducing legislators to vote for the bill…at the cost of the public interest.

More subtly, a party may make campaign promises to swing groups or party-affiliated interest groups in an effort to build a winning coalition, but find that there is insufficient public support for the promised legislation. This puts majority party members in a quandary: passing the legislation could harm their collective reputation, but angering a critical group or bloc of voters could lead to primary election challenges or weak support in the general election. The Democrats have faced this situation with the “Employee Free Choice Act” as introduced; public support was underwhelming, business opposition was intense, but woe to the Democrat who votes against labor’s #1 agenda item.

Which brings us to filibustering. Historically, one of the strongest cases for retaining the minority’s right to filibuster is as a check on the majority party. Sometimes, a majority party tries to pass legislation that lacks public support and/or is a payoff to some organized group, and in those cases the will of the chamber—and perhaps the interests of the majority party—is better served by a minority party filibuster. In such cases, it may look like the majority party is trying VERY HARD to pass their bill but the minority party is being “obstructionist”…yet behind the scenes at least some members of the majority party (probably moderates) are privately thanking the minority party and the rules of the Senate for sparing them from a difficult choice between their political interests and the national interest.

I sometimes make fun of one of my first articles for being about how “nothing happened” in the Senate from 1918 to 1925. But, to be fair, it covers a critical period of Senate history: the chamber had just adopted its first cloture rule (requiring a 2/3 majority) and considered lowering the threshold to a simple majority, but did not. The critical argument then was that “majority rule” in a partisan legislature is an invitation to coercion and corruption. Party leaders will use every means to push through bills that lack the sincere support of a majority of the legislature, and the House offered ample examples of that fear. A lot of things have changed since the 1920s, but the specter of majority party leaders manufacturing majorities for ill purposes is still alive and well.

Once the Democrats replace Senator Kennedy they will have 60 votes in the Senate. While Democrats can complain about Republican obstruction all they want, my calculations suggest that 60 is three-fifths of 100. If the Democrats propose legislation that is in the national interest and marketable in the 2010 election, it should be easy to pass, even if Republicans refuse to support it.

Next: How to Pass a Health Care Bill.

*Mitch McConnell is da bomb.