Polarization and the filibuster

March 1, 2012

I recommend reading Ezra Klein’s two recent pieces on polarization and the filibuster, here and here, which focus on the important idea of how institutions filter preferences:

Snowe’s retirement will have many lamenting the endangered moderate and wondering how we can turn back the clock. But we can’t. About that, Snowe is right. Polarization is with us now and will be with us for the foreseeable future. The question is whether we will permit it to paralyze our political system and undermine our country or whether we will accept it and make the necessary accommodations.

Doing so would require taking on cherished, consensus-promoting features of the old system, like the filibuster. But in today’s girdlocked world, those features no longer promote consensus. They simply promote gridlock.

The filibuster, of course, is what permits a united minority to kill bills. As such, it radically increases the value of holding the opposition together in a “block everything” strategy, and thus radically increases the pressure on minority senators to resist the allure of compromise. In its absence, it would both be worth less for individual minority senators to resist compromise, and worth less for their leadership to pressure them to resist compromise. Thus, compromise would become easier.

It’s also important to note that the filibuster is mainly an issue in times when one party controls the House, the Senate, and the White House. That’s not an unknown state of affairs, obviously, but it is relatively rare: In the last 30 years, there have only been eight years of unified government — four for Democrats, and four for Republicans. That’s because, in our system, with its staggered elections, a party usually has to win a few subsequent elections to achieve unified control of the government. When they do that, it tends to mean they have an unusually strong mandate from the public.

So the question isn’t whether the majority party should be able to work its will all of the time, as is true in, say, the British system. It’s whether the majority party should be able to work its will during the few times when the public has decisively put it in charge of the government. And it seems to me that given the nature of our problems, it would be productive if the two parties had more opportunities to govern effectively and then be judged upon their results.

This is a fair argument, but it doesn’t hold water for me. Mostly because it’s at odds with itself: you can’t simultaneously achieve “more compromise’ and “more opportunities [for the parties] to govern effectively and then be judged upon their results.” Those are basically opposite: you either have a majoritiarian system in which the minority is effectively shut out from policy making, or you have a system in which minority participation is required to pass policy, and compromise is therefore necessary. Given the realities of polarization, you really can’t have both.

Four related general points, not all of them directed at Ezra’s columns:

1. This concern — the majoritarian one — is much wider than the filibuster. The American system is just chock full of anti-majoritarian features. That is, if the comparison is to the British system or some other single-chamber sovereign legislature that attempts to singularly replicate the will of the people, the filibuster is really far down the list of anti-majoritarian features. Here’s a short list: bicameralism, staggered Senate elections, the independent Presidency, the veto, the supermajority requirements to ratify treaties, the committee system, the bar on non-germane amendments in the House, constitutional federalism, and so on. It’s endless.

Our system is not majoritarian. On purpose. And there’s nothing inherently wrong with that. Or, to put it better, it’s not obvious to me that making a system more majoritarian necessarily improves the overall legislative output or the overall health or happiness of a limited-government republic. There are plenty of things in life that absolutely shouldn’t be majoritarian — like criminal jury deliberations — and the burden of proof, I think, is on those who believe our federal government would be better served with fewer anti-majoritarian institutional features. Simply asserting — as many people reflexively do — is definitely not good enough.

Which I think Ezra agrees with. But I also don’t think it’s good enough to point out how one exogenous change (polarization) is amplified by an existing anti-majoritarian institutional feature (filibuster). That’s true for almost all exogenous changes and all institutional rules. Things change. The practice of politics is dynamic, both across institutions and over time. Within the broad understanding of representative democracy, there’s virtually no arrangement of institutions that, ex ante, is superior to any other. It depends what your axiomatic priorities are. And so for each argument you make against the anti-majoritarian features, there’s pretty much an equivalent argument in favor of them. It reduces, usually, to a clash of axiomatic values.

Still, there are consequences to the majoritarian impulse in the contemporary political environment. One important one is that…

2. The filibuster is under attack, I think, for quite the wrong reasons. I’m of the mind that the filibuster is probably the most overrated of all the anti-majoritarian devices. Not because it’s not important or consequential, but because many commentators view it as the difference between hell and utopia. But as Ezra notes, it’s often not even a huge systemic factor unless there is unified control of the government. Does it alter policy outcomes? Of course. Are there places I’d like to see it reformed? Absolutely (judicial nominations). Is it more important than the veto, or bicameralism, or the staggered terms in the Senate, as far as anti-majoritarianism goes? Color me skeptical.

The reason the filibuster gets so much attention is threefold: first, high visibility. It’s pretty tough to see how the committee system works it’s anti-majoritarian ways, but the filibuster is often on bright display. Now, that’s not always the case — tons of legislation is buried by the filibuster before it ever gets to the floor, making filibusters ridiculously hard to count up — but it’s definitely in the limelight a disproportionate amount of time. Second, the filibuster as currently practiced is new. That is, plenty of people can easily remember when lots of legislation passed the Senate that would, under today’s conditions, be killed by a filibuster. Finally, the filibuster is, relatively speaking, easy to change. Unlike bicameralism or the veto, here is an anti-majoritarian institutions that could theoretically be removed by a few quick votes in the Senate.

But all of this sums to looking for your lost keys under the street lamp. Regardless of the fate of the filibuster, the policy outputs of our system are not going to respond to bare majoritarian wishes. Period. If you’d like them to be somewhat more responsive to bare majoritarian wishes, then by all means promote the ending of the filibuster. But I don’t think it’s fair to say to that ending the filibuster would somehow have massive consequence for the anti-majoritarian character of the institutional structure. We had policy gridlock at many points in the (pre 60-vote Senate) 80′s and, conversely, a sizeable amount of important legislation has been passed in the last 10 years, despite the Senate rarely having an effective 60-vote coalition. And so while I understand that the filibuster changes policy outputs, I’m less inclined to believe it actually regularly stops major policy dead in its tracks. At any rate, even total reform is unlikely to result in huge consequential policy changes. And it certainly wouldn’t make our system more just in any sort of normative sense. In fact, it might just make it less just, because…

3. The conventional non-filibuster counterfactual is pretty weak. I’ve always thought that there’s a strange nostalgia for the Washington politics of the 60′s among those who dislike the filibuster and/or polarization. It doesn’t really wash. Yes, on civil rights the northern Democrats and the Republicans teamed up and the bill was written in the minority leaders’ office and, in general, the parties weren’t quite so ready to vilify each other because there were conservative Democrats and liberal Republicans and a fair number of cross-partisan coalitions. But if the animosity wasn’t so partisan, it was certainly just as real. And I can’t imagine contemporary Democrats would be all the happier if they could just get a dozen of the more conservative Republicans to switch party labels.

But the main point here is that when you look back a generation or two and see (1) less polarization and (2) less use of the filibuster, it doesn’t at all follow that if you institutionally replicate the second point (by ending the filibuster), you somehow move closer to the first. Now, I know Ezra wasn’t exactly asserting that, but I think a lot of people seem to believe it — that if we just get rid of the filibuster, we can achieve the sort of bipartisanship of yesterday. Nonsense. What you will achieve, at best,  is the party politics 1870s’. And while that’s not something that bothers me — I’m fine with strong responsible parties — it does fly in the face of what a lot of people think of when they think of killing the filibuster. Things like deliberation and compromise.

I just don’t see it. Killing the filibuster in its entirety in the contemporary climate would almost inexorably lead to a foreclosure on the ability to raise amendments on the floor, in effect removing the one clearly deliberative aspect of the Senate. Generally speaking (and tree-filling aside), amendments cannot be restricted on the Senate floor without unanimous consent; anyone who thinks they have a better idea can get a vote on that idea to see if the majority agrees with them. In effect, no one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down  and ram through your ideas, if the majority (numerical, not partisan) wants a different idea.

But wait, in what radical legislature would they allow the opposite — bills getting passed into law that a (numerical) majority wants to — but can’t — further amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the (partisan) majority can write restrictive rules of debate for individual bills, rules which state what amendments are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way.

This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a large percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.

The true tension in all of this is that you can’t have it both ways. You either have the House — where the leadership of a partisan majority can effectively lock out legislation that has majority support — or you have the Senate, where the minority can block legislation that has majority support. Threading the needle requires either strangely weak parties or unrealistically benevolent leaders. But my bottom line, one that you don’t hear too often outside the Capitol, is that we probably don’t want two chambers that suffer from the same problem, and that having iron-fisted leadership rule in the House and minority power in the Senate is preferable to having two of either, and probably better than having the converse. Scratch that, definitely better than having the converse.

Kill the filibuster and get more compromise? It’s just not a likely result.

4. A majoritarian Senate might not even be a normative improvement. I’ve said it before, but at the micro-level, the main problem with filibuster reform is that you aren’t unleashing majoritarianism in the Senate as we normally think of it in the contemporary world, you are unleashing majoritarianism of the states, which may or may not correspond to popular majoritarianism at any one time. People constantly bemoan the state of the world when the Senate rejects an idea that seems popular in public opinion. But one simple explanation is often forgotten: the Senate is malapportioned!

Yes, everyone “knows” that, but a lot of times people seem to overlook one of the basic consequences: a Senate vote will often not match aggregate public opinion, even if every single Senator is explicitly following the public opinion of his/her constituents. Unlike the House, which at least theoretically is weighted like a public opinion poll, the structure of the Senate makes no pretense to being a reflection of national public opinion. (Of course, the House can suffer the same problem; any aggregation of district preferences — no matter how perfectly apportioned — could stray from national preferences. But it’s much more pronounced in the Senate).

Now, you can ask Senators to take a Burkean trustee view of representation and vote the national good. That may or may not be warranted in any individual case. But I think it’s a fallacy to imply in such situations that at least some Senators must be inherently doing something against the wishes of their constituents if national public opinion goes one way and the Senate goes another. The institution, for better or worse, is simply not built that way. And because it’s not built that way, we have to be careful about adjusting Senate rules in search of majoritarianism. For it isn’t there to be found, in any real sense. Any bare Senate majority might reflect an underlying 40% of the nation, or an underlying 60%. And that would be just as true post-reform as it is now. It’s a reminder that the Senate can be just as anti-majoritarian without the filibuster as it is with it. For it is not, and was not meant to be, a popular institution.

And look, I’m not a huge fan of the filibuster. I think it allows for unhelpful ambiguity in Senator position taking, unnecessarily slows things down, and gives perhaps too much leverage into individuals. But all of that sums to much less than the whole of the contemporary complaint. A federal government without the filibuster is just a government with one less anti-majoritarian feature. For every policy the filibuster buried, there are probably 50 that were buried by non-filibuster anti-majoritarian features of the system. And for every policy you like that got buried by the filibuster, there’s probably one you don’t like that saw the same fate.

Now, I don’t want to say this is all much ado about nothing. The filibuster shapes policy, and in some areas (like judicial nominations) it is having a serious impact. But I think it gets way more attention than it deserves. The filibuster is far from the only institutional veto player, it is usually not the decisive institutional veto player, and its reform will come with some costs. Reformers should correspondingly temper their expectations about the world after success.

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10 Responses to Polarization and the filibuster

  1. Dan Miller on March 1, 2012 at 1:36 pm

    I think you’re missing the strongest case against the filibuster. It’s not that it’s anti-majoritarian, precisely, but that it prevents literally anything from being done. In the modern environment, there are entire policy areas where it’s impossible to get 60 senators to agree on any course of action. The filibuster makes it impossible to accomplish anything in those areas. If you look at the most significant legislation of the last 10 years or so, it was accomplished with reconciliation (Bush tax cuts), or when one party controlled 60 seats (ACA, financial reform). Given that those are rare circumstances, if you want to see the Senate pass any major bills at all, filibuster elimination is a pressing concern. Which isn’t to say it will institute pure majoritarianism. But it will make it at least possible for government to occasionally act.

    • Matt on March 1, 2012 at 3:09 pm

      But those things are precisely theoretically true in regard to bicameralism as well, to the same degree they are true of the filibuster. Same with the veto. Identical “impossible.”

      • Dan Miller on March 2, 2012 at 5:54 pm

        I’m not sure I follow. There are certainly bills that would have passed our bicameral, veto-enabled government during the last 10 years if the filibuster hadn’t prevented them.

        • Matt on March 2, 2012 at 7:28 pm

          Right: of course there are.

          My point is not that the filibuster hasn’t stopped anything. It’s that those things, absent the filibuster, would still have required a substantial supermajority to get passed. Removing the filibuster does not change our system to one in which the majority rules; it simply makes it *slightly* less super-majoritarian.

          But the rhetoric of many of the filibuster opponents is that:

          (a) majoritarianism is the only legitimate system;
          (b) getting rid of the filibuster will achieve a majoritarian system.

          Which is, of course, nonsense. And thus I don’t find it persuasive to argue against the filibuster because it’s “anti-majoritarian.” The whole system is anti-majoritarian, every step of the way!

          • andrew long on March 3, 2012 at 12:43 pm

            “The whole system is anti-majoritarian, every step of the way!”

            It is, but isn’t that likely why the framers of the constitution didn’t even find it necessary to specify that regular votes in congress shall pass by majority vote? They were confident that by the time a bill got to the floors of both chambers, and with the backstop of the veto firmly in place, that the will of the people was going to be reflected and protected as well as it had ever been in history.

            The filibuster issue isn’t one of majority rule, as you brilliantly prove above. But it is one of majority vote, isn’t it? The filibuster has arisen from senate rules, which (provided they don’t seek to alter constitutional imperatives) are by definition constitutional. But it is now being used, arguably abused, in such a way as to require a supermajority vote on virtually all bills. Isn’t that dangerously close to being unconstitutional? What would we be saying if the house changed its rules to require the same threshold? Would that be constitutional?

  2. Greg on March 1, 2012 at 2:14 pm

    If only finally votes on bills and amendments could be filibustered, it wouldn’t be as big a problem, but practically every stage in the process of moving a bill forward is filibusterable. So even when the majority has the votes to break the filibuster, it takes forever to move forward on even the simplest things. The filibuster has basically killed the conference committee too, because every stage in that process can be filibustered.

    No state legislature that I’m aware of has anything comparable to a filibuster in their rules, and they’re perfectly capable of functioning and working toward compromises. I work in a legislature myself, and it has open rules of the type you describe (although there are germaneness requirements), but the majority party still routinely votes down every amendment the minority offers, even substantively unobjectionable ideas. And our structure is one that allows for a great deal of independence from partisan leadership. We have open primaries, with full-time legislators and staff that report to the individual legislators, not the leadership.

  3. Kevin R. Kosar on March 1, 2012 at 3:37 pm

    I guess I approach this from a more microeconomic perspective.

    I think getting rid of the filibuster and holds is advisable because doing so would reduce (though not eliminate) the ability of individual senators to act as veto-players. With the Senate in session/working for such short periods of time, every minute is incredibly valuable. Any power a Senator has to gobble up those minutes gives him power to extract concessions (like, don’t cut spending in my state) by gumming up the works.

    In short, my mind ahs a hard time seeing how an institution can do good work with any regularity if every Member is a veto-player.

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