I get the feeling that my crazy liberal relatives are going to be all over filibuster reform this weekend. That means, as a general defender of the contemporary Senate, I’m in for a spirited debate, and that’s being charitable.
I have a few new thoughts down below, but first, here’s an annotated catalog of past blog posts I’ve written related to the filibuster that I’ll be reviewing before I enter the combat zone on Thursday.
1. Managers Gonna Manage. Legislatures Gonna Legislate. My basic argument against filibuster reform: 1. The Senate is malapportioned. Removing the filibuster will not ameliorate this, and may exacerbate it. 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 disappearance 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.
2. Polarization and the filibuster. An expanded look at my basic argument against filibuster reform. Plus an explanation of why you can’t simultaneously achieve more partisan compromise and more accountable majority parties under a reformed filibuster.
3. Filibusters and Cloture. Counting up filibusters is really hard. Using cloture motions to do so is borderline folly.
4. Hardball and HARDBALL. The Senate is held together by norms. No matter how much you think people have started playing hardball with the rules, we’re not even close to the hardball people could be playing.
5. Talking about the filibuster. Be careful about how you talk about the term “filibuster.”
6. Deliberations. My argument against falling into the trap of good-government types who want to create a “deliberative legislature.” A deliberative legislature is not one in which people listen to each other thoughtfully reason out arguments and convince people of things. A deliberative legislature is one in in which bills can be iteratively improved by floor amendments that carry the support of a majority of legislators. By the former definition, all legislatures in the history of the world have failed the “deliberative” test. By the latter, the U.S. Senate passes. But the House does not, and neither would a post-filibuster Senate. This is a huge cost of getting rid of the filibuster.
7. In (partial) defense of less democracy. A more theoretical post reacting against popular belief that more democracy = good. Democracy isn’t always best. And don’t confuse democracy and majoritarianism, they are separate ideas. Also, there are many democratic reforms that have proven mediocre, and some anti-democratic reforms that have proven useful.
8. The difficulty of institutional reform. Political reform is really hard. While you always try to install normative values into institutional rules, lots of obstacles stand in the way of success and/or coherence.
9. You tell me it’s the institution, well, you know. We should be skeptics about the vast majority of proposed institutional reforms.
10. Friday Congress blogging: unanimous consent. You need to understand this before you can understand the Senate. Period.
Ok. Now some other filibuster-related thoughts. One thing I’ve never written about at any length is my view on the difference between filibustering legislation, executive branch nomination, and judicial branch nominations. In fact, the most I think I’ve ever said about the topic is two tweets, basically arguing that I would, if given the power, eliminate filibusters on all nominations, and replace them with (potentially very lengthy) time limits on floor debate. The idea would be to try to balance the interests of intense minorities with the interests of an intense majority. Majorities could absolutely get their nominations through, but only if they were willing to eat the costs of tons of lost floor time when the minority was upset enough to force them to do so. That’s the theory, anyway. Like I said, it was two tweets.
Here’s the mechanics I envision (and this is preliminary, not in rules-speak, and subject to flaws i don’t see): judicial nominations could, of course, still move through the floor by unanimous consent agreements. Likewise, they could also move by getting cloture. But the presumption in considering them would be that, absent a UC or a successful cloture motion, there would be X hours of time for debate, evenly divided. It wouldn’t all have to be used, and it could always be avoided by cloture or UC, but if the minority wanted to spend X/2 hours discussion a nomination, they would have that right. The majority could just sit there and listen — that would be fastest — but could also rise and respond on their own allocated time.
Jon Bernstein was kind enough to take up my idea in a blog post that I highly recommend. His basic concern about it, which I think is real, is that it wouldn’t structure the incentives correctly, and you’d end up in an equilibrium potentially worse than the current state of affairs: what if the minority simply used the new rules to force a full floor log-jam on every single nomination, even in cases where they currently would just allow things through? It’s a real danger, and it’s an example of what Sarah Binder wrote about yesterday in a fabulous and dead-on post over at Monkeycage: we can’t predict the effects of any Senate reform, because so much of the Senate runs on norms. If the reform encourages Senators to start breaking more norms and playing hardball, you can end up going backwards. Please go read her post.
I’m obviously concerned about this with my proposal. But not that worried. Tons of nominations go through all the time right now on UC, and we virtually never see the minority insisting on their post-cloture 30 hours of debate. So I don’t see why, ex ante, we would expect regular use of 30 hours — or 100 hours — of debate granted to all nominations. More likely, it would only occur — if ever — when there really was a nomination that created an intense minority preference against. Or maybe just for every SCOTUS nominee.
One thing that sets me apart from most filibuster defenders is that I don’t really believe the filibuster can be justified in regard to nominations, executive or judicial. And that’s for three reasons: first, I have a basic belief that the President should be able to surround himself with the advisers and inferiors that he wants. If I were a Senator, my normative policy would be to never vote against an executive branch nomination unless I literally though the nominee had a physical or mental disability that prevented them from taking on their job. Second, I think the prerogatives of the Senate should be (and are) on their weakest grounds when dealing with inter-branch issues. I won’t go into detail here, but I think there is a fundamental difference between the Senate in legislative session and the Senate in executive session. Enough so that I think the rules for each should be fundamentally different.
Third, and most importantly, the benefits I see as deriving from the filibuster in the lawmaking arena tend to not apply in the nominations arena. There are no minority amendments to be had on nominations. There are no compromises to be put into a nomination. It’s an up/down vote on an individual, not a bill being crafted among 100 equals. Therefore, the leverage to be gained from the filibuster is purely moving the location of the pivot point for passage toward the minority. In effect, this is the super-majoritiarianism that people complain about, with fewer of the benefits. Now, this is not an airtight case; there’s a strong case to be made the other way, that lifetime appointments to the bench are too valuable to be left to temporary majorities. That nominations do involve bargaining across multiple appointments and across other policy areas. But I’m not, at this point, convinced.