Another Anti-Filibuster Post

Defense of the filibuster tend to be a combo of mistakes and mythology.

The NYT editorial board has a dramatically titled, but nonetheless mostly on target editorial about the filibuster: For Democracy to Stay, the Filibuster Must Go. The title refers to the fact that HR1 has an appointment with the legislation-killer known as the filibuster. While I support HR1’s passage and think that its voting-rights section in particulate would be an enhancement to American democracy, casting it as the salvation of democracy is more than a bit much.

But, of course, the essay is more about the problems with the filibuster than it is about the salvific nature of HR1. (Although a good chunk of it is devoted to HR1, here I am focusing on the anti-filibuster portion).

The bottom line is this: pretty much all pro-filibuster arguments are either mistaken or based in mythology.

For example,

The most compelling reason to keep the filibuster is its proponents’ argument that the rule prevents a tyranny of the majority in the Senate. That’s the rationale of the two Democrats currently standing in the way of ending it, Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. They have been steadfast in defending the modern filibuster as part of what they assert is a longstanding Senate custom.

“It’s meant to protect what the Senate was designed to be,” Senator Sinema said. “Debate on bills should be a bipartisan process that takes into account the views of all Americans, not just those of one political party.”

There are two major myths here: one about bipartisanship and the other about design.

In regards to bipartisanship, I will say that I understand the impulse for consensus and agreement. It would be keen if we all could agree and find common solutions. But here’s the thing: the whole breaks down in parts because we don’t all agree. If bipartisanship was a regularly achievable, especially on major legislation, that would signal that we really didn’t need more than one party.

Indeed, one would expect that most legislation in a given democracy would be supported by one party (or majority coalition of parties) and not all parties. They are parties for a reason.

This fantasy reminds me of people who say things “why can’t Congress just do the right thing?” while utterly ignoring the fact that they themselves have a different notion of what “they right thing” than a host of people they know, let alone a bunch of people they don’t.

If it was possible, through some sort of deliberative process, to arrive at the “right thing” then let’s adopt that system (spoiler alert: such a system doesn’t exist).

And what to say about “but it was designed that way!”?

Not to get too childish about it: but no, it wasn’t.

Neither the Framers nor the text of the Constitution brought us unlimited debate in the Senate as a design feature. Not only is it something that evolved, almost by accident, but the current version of the filibuster is a relatively recent phenomenon (as I discussed over a month ago).

Indeed, a point that I should make more often is that the Philadelphia conventioneers who wrote the US Constitution were explicitly replacing a document that required a super-majority to pass any legislation under the Articles of Confederation (9/13 or almost 70%). They knew the problems of governing when a minority can block legislation.

As the editorial notes:

the framers of the Constitution didn’t include a supermajority requirement for the Senate to pass legislation. They had watched how such a requirement under the Articles of Confederation had prevented the government from doing almost anything. As Alexander Hamilton wrote in Federalist 22, “What at first sight may seem a remedy, is, in reality, a poison.” Supermajority requirements would serve “to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artifices” of a minority to the “regular deliberations and decisions of a respectable majority.”

Another myth:

the filibuster is crucial for permitting full debate on a bill. Again, reality shows otherwise. The filibuster doesn’t only fail to ensure extended debate on a bill; today it curtails the opportunity for any debate at all. A single senator can signal he or she intends to filibuster by typing an email and hitting send. No need to stand on the Senate floor to make your impassioned case.

This is actually kind of a double myth because it is predicated on the idea that floor debates are where people make up their minds, which is rarely the case. Floor debates are really more about statements than debates, as well as a time for various legislative maneuvering, such as as attempting to amend the bill.

So, not only does the filibuster not lead to more deliberative debate (it leads to less), the notion that debate is part of coming to consensus or agreement is just not true in any event.

The piece also correctly notes:

the filibuster is a redundancy in a system that already includes multiple veto points and countermajoritarian tools, including a bicameral legislature, a Supreme Court and a presidential veto. The Senate itself protects minorities in its very design, which gives small states the same representation as large ones.

Setting aside deserved (n my view) critiques of the Senate itself, there is just no good reason that a body that already is skewed towards a numerical minority of citizens should be even further so skewed by the filibuster. This is even more true given the number of other veto points in the process.

FILED UNDER: US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Matt Parker says:

    I actually think the idea that needing to get 60 votes will lead to more bipartisanship is wrong for another reason. What incentive is there for an individual minority party member to stick their neck out and support legislation that their party is not keen on? Getting 10 members of the other party (in a 50/50 split) is a herculean effort because each individual needs to know there are 9 others who also support it to risk it.

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  2. @Matt Parker: Indeed. In fact, I think this fits into my point about there being a reason people are in different parties.

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  3. gVOR08 says:

    I frequently criticize NYT. But yesterday we had some mention of the Overton Window, and I think NYT moved it a little with this column. We need to eliminate the filibuster. Or failing that, change it to something easier to manage that Manchin and Sinema can claim preserves the spirit of the filibuster. Manchin has hinted willingness. Once the NYT Editorial Board has signed on, eliminating, or defanging, the filibuster can no longer be regarded as a fringe idea. Praise where due, thank you NYT.

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  4. de stijl says:

    The design of the Senate is anti-majoritarian.

    How much more advantage is required? Apparently making voting harder is also required because the wrong people are voting against us.

    Our current structure encourages obstruction over compromise, because obstructionism almost always win. Quite easily if you require 60 Senate votes for approval.

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  5. Mimai says:

    @Steven L. Taylor: Kevin Drum wrote about this recently. I’d be interested to hear your take on his post.

    https://jabberwocking.com/the-filibuster-is-nothing-but-a-mirage/#comments

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  6. @Mimai: I think he is right on substance (if 51 Senators want to change a rule, they can) and wrong in his tone and the way that tone lends itself to an overly breezy conclusion.

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  7. Mimai says:

    @Steven L. Taylor: Thank you. That was my sense, but I’m far from an expert on these things so I was questioning myself. Surely, if it is as “breezy” as he implies, we wouldn’t be talking about it ad nauseum.

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  8. @Mimai: The bottom line is there aren’t the votes to change the rules and there is definitely a weight to tradition making it harder to change.

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  9. Mimai says:

    @Steven L. Taylor: The “weight to tradition” part is what I can’t wrap my head around. Seems like traditions get honored until they don’t. And lately, well, you know better than I do about this. So it perplexes me that this tradition seems to get super special status.

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  10. @Mimai:

    Seems like traditions get honored until they don’t

    Quite true.

    Still, what we find is that people believe the stories (e.g., “this is what was intended” or “world’s greatest deliberative body” and so forth) and it shapes their behavior.

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  11. Kurtz says:

    @Mimai: @Steven L. Taylor:

    Tradition, human nature, common sense…These are often invoked when one has run out of legitimate ground for argument.

    The first and third are eyeroll-inducing, because they are like tacit admissions from an interlocutor that they have no intention of changing their view no matter the evidence.

    The second is arguably worse, because most people who use it likely haven’t a clue what they mean by it. I’ve taken to asking, “what do you mean by human nature?” It usually ends the discussion. Most people don’t think about it, and have no interest in interrogating something that difficult.

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  12. de stijl says:

    @Steven L. Taylor:

    The world’s greatest obstructionist body. Deliberation? Nah. Who are we kidding with that?

    Plus, staff do all of the hard work. Senator X is mostly window dressing.

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  13. Ken_L says:

    It would of course be unforgivably cynical to suggest that the Democrats who want to keep the filibuster (and Manchin and Sinema aren’t the only ones) take that position because they expect to be the minority party again sooner or later. Australian senators who spent long years in opposition could tell them how impotent they would be, reduced to bullying public servants in committee hearings to get a headline.

    The compromise position might be to move dissent from the ruling of the presiding officer every time s/he rules cloture requires 60 votes, if the bill is deemed sufficiently important. It takes only a simple majority to declare that the plain words of the Senate rules actually mean on this occasion the opposite of what they say. That’s effectively what happened in 2013 and 2017 with respect to appointments. If it takes Alice-in-Wonderland measures to get Congress slightly functional, so be it.

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  14. James Joyner says:

    @Steven: We’re in broad agreement but I would quibble with this:

    If bipartisanship was a regularly achievable, especially on major legislation, that would signal that we really didn’t need more than one party.

    This assumes that the two parties, and indeed the polity as a whole, are perfectly sorted. Otherwise, the arguments Madison lays out in Federalist 10 apply.

    Certainly, our parties are incredibly sorted these days. But, absent punitive measures and a quasi-parliamentary mindset, there certainly ought to have been more than zero Republicans who voted for this week’s stimulus bill. We would certainly expect most of them to oppose on ideological grounds, but not all of them.

    The reinforcing cleavages seem to be overwhelming the cross-cutting ones right now. But there’s no natural reason why that has to be the case.

    All that said: we agree that the filibuster isn’t a tool that will lead to bipartisanship. Indeed, if anything, it increases the incentives to vote in lockstep.

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  15. Mimai says:

    @Kurtz:

    Tradition, human nature, common sense…The first and third are eyeroll-inducing…The second is arguably worse.

    I take your point about how people frequently invoke these as a debate tool, only to dissemble under the slightest bit of scrutiny. But I’m a bit (a bit) more sanguine than you.

    I realize it’s frequently invoked by conservatives (and thus is likely to be treated with scorn around here), but there is some truth to the principle of Chesterton’s Fence.

    And despite its flaws, there is something to be said for common sense (eg, the common sense morality of Thomas Reid and more recently the intuitive ethics of Michael Huemer).

    As for human nature, it seems to me that many of the problems we see in the Senate (and House) are rooted in the worst aspects of human nature (avarice, in/out grouping, cynicism, etc). If only we could dose them with some Pinker-style “better angels” potion…

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  16. @Ken_L:

    take that position because they expect to be the minority party again sooner or later

    This is often the argument made. But I think it, too, is a poor one because, for the Dems, the party that will represent the majority of the population for the foreseeable future, to give up up the power to govern because they want to retain the power to obstruct is a bad trade, in my view.

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  17. @James Joyner: To be clear: I am not saying that bipartisan outcomes are impossible. I am saying that arguments that assume that the goal ought to be bipartisan outcomes is vested in logic that ignores why the parties exist in the first place.

    Especially these days with, as you note, heavily sorted parties.

    But, of course, my position is that the current state of affairs (ideologically sorted parties) is the more normal situation (form a comparative POV) and the post-Reconstruction era where the solid Democratic south created distortions in that sorting was the aberattion.

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