The US Senate Filibuster: It does not Produce Compromise, It Does not Protect Minority Rights

 

The debate over repealing the US Senate filibuster is reaching a partisan fever pitch.  Democrats are

worried that after passing the $1.9 trillion stimulus legislation on a straight party-line vote by using the reconciliation bill exception they will not be able to move their agenda unless the filibuster is repealed.  Republicans including Mitch McConnell vows “scorched Earth” if repealed, along with a   warning that of Democrats do this they will regret it in the future.

            Central to the argument for preserving the filibuster are two assertions.  One is that it is needed to protect minority rights.  Two, the filibuster encourages compromise.  The reality is, neither of these claims are true and in fact its repeal may promote both goals better than retaining it.

            The filibuster rule is a product of slavery politics, as was true of the electoral college.  If the electoral college’s goal was to protect the slave states from being outvoted in presidential selection by the free states, purpose of the filibuster was to do the same.  The Senate with its equal representation already gave the South a bonus in representation.  But what the filibuster did was to allow one senator the effective ability to shut down the action of the chamber to prevent it from passing legislation hostile to the South.  John C. Calhoun, a Senator from South Carolina in the antebellum South, used the tool effectively to block critical legislation.  But he is also famous for his role in the nullification crisis where he asserted states had a right to veto or nullify federal legislation.  His book A Disquisition on Government, advocated a theory of concurrent majority which would only permit legislation to pass if all classes, interests, groups, or states which had an interest in it supported it.  Effectively, the filibuster went hand-in-hand with his theory of government to support states’ rights and protect a slave holding minority against majority rule.

            Throughout history the filibuster has more often than not been used to oppose legitimate rights than support it.  It was used to oppose civil rights legislation in the 1950s and 1960s.  While American liberal democracy is supposed to protect minority rights, it is also premised on majority rule and respect for letting the legislative process facilitate social and political change and not inhibit it.

            Arguably the filibuster might have made sense a half century ago when American politics, parties, and studies show Congress were less ideological and partisan than it is now.  Back then the non-ideological or coalitional nature of parties meant far less straight party line votes in Congress.  But all that has changed, and Congress is far more polarized now than before.  We know that the filibuster’s use has increased over time.  Evidence over a 50-year period reveals a hardening of partisanship in Congress The attached graph from US Senate data details the increase use of cloture (the tool to close filibusters) over time.  It demonstrates a clear pattern of increased use of the filibuster over time.

 

The filibuster has facilitated that.  One the filibuster encourages is not negotiation and compromise, but winner-take-all politics.  Its presence allows one senator or a minority to veto legislation instead of encouraging cooperation.  If the filibuster were repealed, dissenting senators would have more of an incentive to participate in forming the bill as opposed to being holdout and shutting down any action.

Moreover, if the filibuster were a tool encouraging compromise, 50 years of data would not produce data demonstrating the increased use of cloture over time.  A long-term trend of polarization should produce either no increase in its use, or alternatively its threatened use should reveal evidence of adopted bipartisan legislation over time.  In fact, the longer trend over the last 50 years reveals a steady decrease in the number of bills passed. 

From a statistical point of view, there is a connection between the numbers of bills passed and votes on cloture.   Correlating the two statistically, there is a strong negative -.66 relationship.  This means as the use of the filibuster has increased, the number of bills passed has decreased.  This is not  proof that the use of the filibuster has caused  a decrease in the number of bills passed, but it is powerful evidence in that direction.

 

 

 

 

Thus, the filibuster does not produce compromise and it does not encourage legislating.  Instead, what it has done is weaken Congress, making it a far less effective body than it once was.  This has produced two phenomena.  One, it has empowered by the President and the Supreme Court.  It has done that by forcing the president to govern by executive order and bypass Congress when it can.  It has also put the Supreme Court and the federal judiciary into a role of resolving disputes that it should best be addressed by the political process.  It thus also makes judicial confirmations far more important than they should be.

The second problem is that the filibuster precludes the type of negotiations that are needed to update and correct legislation.  There are a litany of laws, ranging from health care, elections, tax policy, labor relations, communications, and infrastructure that need fixes or updates.  The filibuster permits a minority or perhaps even a special interest to thwart needed policy change, thereby freezing innovation and necessary legislation for the public good.

            The filibuster never was good for American democracy and it is even worse now.  The supposed reasons for its continuance are merely myths that fail to sustain its existence, and which instead perpetuate or exacerbate political dysfunctionalism.

The Case Against the Filibuster--Why the Democrats Got it Only Half Right

The Senate was right to change the filibuster rule for presidential judicial nominees. Yet it was too little change, too late.  What really needed to be done was to abolish the entire filibuster rule for all Senate business.  Senate Democrats will soon find that unless they do that nothing will get done in the Senate and there will be more Ted Cruz's  reading Dr. Seuss.
    After the Democrats were routed in the 2010 midterm elections I argued that one of Obama’s and the Democrats mistakes was not voting to disband the filibuster rule on day one in 2009.  While for 18 months the Democrats had 60 votes in the Senate and potentially could do what they wanted, they had failed to act as a unified party were  held hostage both by Republicans and also by the conservatives among their own ranks including Senators Landrieu and Nelson.  Had they killed the filibuster they would have done not only Obama, progressives, and their party a favor, but they too would have saved both the party and America from what has not transpired in the last three years–gridlock and a country held hostage by extremists.  Remember, a far better health care bill might have been passed had the threat of a filibuster not existed.
    Three arguments bode against changing the rule–tradition, bipartisanship, and minority rights.  All three are fallacious arguments.  First, arguing that changing the filibuster rule is wrong because it goes against a rule that has a long tradition in the Senate makes no sense.  While history may argue in favor of some things and while maybe at one time the filibuster was a good thing for the Senate, times have changed.  Political parties are more polarized, partisan, and ideological than they used to be (except of course prior to the Civil War) and there is now less of a tradition of compromise and bipartisan than there was even a generation ago. At one time even controversial presidential appointments got votes.  Robert Bork failed to be confirmed as a Supreme Court Justice but he got a floor vote.  Clarence Thomas got a floor vote and was confirmed.  Democrats could have filibustered both but did not.  At one time nominees got voted on but times and circumstances have changed in the Senate. Thus, as the Senate changes so must it rules.
    Moreover, one should not forget that the “nuclear option” to change the filibuster rules on judicial nominees was originally a Republican idea.  In 2005 Republican Senators Bill Frist and Trent Lott, frustrated with Senate Democrats who were angry that the latter were blocking George Bush’s judicial nominees, proposed doing then what Harry Reid and the Democrats did this past week.  It was only a compromise and a backing down by Democrats then that prevented the rule change from going into effect back then.  What comes around goes around.
    Second, as just noted, there is less bipartisanship in the Senate now than in recent memory.  At one point it was less likely that the Senate needed 60 votes to get anything done.  But clearly we have seen how especially Senate Republicans have made it clear that they are now joining their House colleagues in making it impossible for Obama to get anything done.  Remember, after the 2010 elections Senate Republicans made it clear that their number one objective was to prevent Obama from getting anything done.  The filibuster now is being used not really to protect rights of minorities, but simply to be obstructionist.
    This leads to the third argument.  Senate Republicans argue that the filibuster is needed to protect minority rights.  This is an aggregated if not false argument.  For many the image of the filibuster is that of Jimmy Stewart in Mr. Smith Goes to Washington, speaking until he is hoarse in defense of principle.  Yet the reality is that more often than not the filibuster has been used to thwart minority rights than to protect it.  The filibuster was deployed in 1946  to block the permanent creation of the Fair Employment Practices Committee.  Strom Thurmond filibusters in an attempt to stop passage of the 1957 Civil Rights Act.  Robert Byrd uses it in an effort to halt the 1964 Civil Rights Act.  The reality is that the filibuster is invoked to prevent prevention of minority rights, not to sustain them.
    But more importantly, while Republicans argue that the recent change to the filibuster rule will hurt minority rights, the reality is that the only minority it hurts if at all are Republicans.  They are invoking filibuster to argue that their rights need to be defended–they are the minority they needs protection.  How odd an argument.  The filibuster is not about protecting party rights, it is about protecting the rights of the people.  Moreover, the Senate and Congress in general are not supposed to be counter-majoritarian bodies.  They are supposed to majoritarian institutions reflecting majority will.   And even if it were the case that the Senate is supposed to embody anti-majoritarian structures–as political scientist Martin Diamond once argued–the representation structure of it granting all states the same number of Senators, along with bicameralism, is more than enough to protect minority interests.
    The first step in reforming Congress for the good is eliminating the filibuster for everything.  It is antiquated rules that is waxed over romantically for reasons that are hard to fathom.  The changes made last week go only part way toward reforming the Senate.  This partial change will no doubt polarize the Senate even more, perhaps leading the Democrats in frustration to finish the job on the filibuster that they already started.

Change

Oh yea,
Mm,
Still don’t know what I am waiting for,
and my time was running wild,
a million dead-end streets and
Every time I’d thought I got it made
it seemed the taste was not so sweet
–Changes, David Bowie

Change. Four years ago voters demanded it and they ousted the Republicans from Congress. Two years ago they demanded it and pushed Obama into office along with huge congressional majorities. Now change may do Democrats in, producing a GOP House and perhaps, but less likely, a Senate.

What is certain is that whatever voters do this fall, change will not be the result. If Democrats retain control of both houses of Congress it will be by the narrowest of margins, guaranteeing gridlock for two more years. The same is true whether the GOP takes both houses or the parties split. The voters will get more of the status quo. The desire for change will produce its opposite. How Orwellian.

But what is change and what do voters want? These two questions have always perplexed me. When I teach my undergraduate Intro to American Politics class I often begin the class with a discourse on change. I point out first that there is a perennial demand for change among the American electorate along with an equally perennial frustration that change did not occur. I then point out that a defining characteristic of American politics was how the constitutional framers designed a political system that was meant to frustrate and slow down political change.

Checks and balances, separation of powers, federalism, bicameralism, and staggered elections were all designed to break up political power and slow down political change. As James Madison pointed out in Federalist 10, the main threat to popular government was the danger of majority faction–the tyranny of the majority for Alexis deTocqueville. The best thing about a popular government is rule by public opinion, the worst is the same. Madison and the framers sought a system to slow down political change to frustrate the ability of the majority to trample on the rights of the minority. For good or bad, change is meant to be slow or incremental. This is the reality of American politics by design. Americans who do not realize this are frustrated because of logic of our political process.

But institutional design has been compounded by other problems. For example, in the Senate the filibuster makes it impossible to get work done, allowing 41 senators who could represent less than 11% of the population to halt change. One of the biggest mistakes Democrats made in 2009 when they had 60 votes was not to abolish the filibuster rule. Instead, they let themselves be held hostage to Ben Nelson, Blanch Lincoln, and other Democrats who are barely in tune with their party. Thus, lack of party discipline also hampered the Democrats during the Obama years.

Additionally, Obama’s lack of leadership–a failure to take control of the agenda and cede it to Congress–was a major problem. Can anyone ever imagine a Lyndon Johnson letting a Ben Nelson toy with his party over whether to vote for health care reform? Conversely, what has really struck me about Obama is the timidity of change. He has done so little with so much promise. Yes a health care bill but mediocre. Yes financial reform, but mediocre. Yes a stimulus, but mediocre. He has delivered on major promises but the scale of change or reform was quite minor.

But finally, the problem of change resides with the voters. What do they really mean or want when they say change? Real change is what happened when in the early 1990s people walked out of their houses in Eastern Europe and brought down the Berlin Wall. Or in South Africa when they ended apartheid. I doubt that is what American voters want.

Change in the last few years might have been "out with George Bush." End the wars, end the squabble in Washington, or something else. I just do not know. Change seems more negative than positive–voters know they do not like the status quo but do not know what they want. They want something to change for the better but seem blind to what it is they want. Moreover, voters are not of one mind. For those who are angry and demand change this year, are they the same ones who wanted it two years ago? Maybe yes, but the American electorate is so fragmented that there is no real consensus on what change is supposed to be.

“Still don’t know what I am waiting for.”