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Tuesday, July 17, 2012

In Defense of the Senate Filibuster

Senate Majority Leader raised again today the threat of reforming Senate filibuster rules in response to Republican “obstructionism.”  Reid is not alone, many have urged changes in U.S. Senate rules to curtail the growing number of filibusters.  The current cloture rule, requiring sixty votes to end debate, might be reduced to a bare majority requirement to lessen unlimited debates or there may be multiple successive votes on cloture with the threshold falling after each vote – eventually falling to a bare majority.  Such reforms ought to be rejected. As the figure below (excerpted from my forthcoming book with Steven Schier) makes clear, there has been an explosion in the use of the filibusters.  Filibusters increased, and increase demonstrated by the related, and more dramatic, rise in the number of cloture motions. The increase began in the early 1970s, and then declined, only to begin a new rise in the 1980s. There has been an acceleration in recent years, but the figure makes clear that Democrats and Republicans have been part of the “problem.” The solution, however, is not to eliminate the filibuster.

Removing the sixty vote cloture rule might, and probably would, make matters worse.  A simple majority requirement might cause narrow ideological majorities to push through controversial and unpopular legislation. The unpopular health care reform of 2010, for example, avoided a filibuster because it was attached to budget reconciliation legislation that by Senate rules could not be filibustered.  Republicans used the same process to enact the controversial Bush tax cuts in 2001 and 2003. In the absence of a filibuster, both pieces of legislation (in fact any piece of legislation) could be easily undone if a rival ideological majority gains power in the Senate.  This sort of ideological zigzag would produce a cycle of passage and repeal of programs.  Without filibusters, narrow Senate majorities will appoint more ideologically extreme judicial and executive branch nominees.  Given the sharp partisan polarization in Congress and the partisan activists that control the major parties, the filibuster offers the public protection against immoderate majorities enacting intensely ideological agendas only to have them repealed and replaced with an opposing ideological agenda when party control shifts.
Protection against partisan majorities is necessary because, as I have noted many times, America’s two major parties are polarized and neither commands close to majority popular support.  The less-polarized public vacillates between two ideologically extreme parties and at times frustrates both parties by voting in a divided government.  If popular majority preferences consistently were frustrated by arrangements like the Senate cloture rule, then perhaps majoritarian reforms would be in order.  But that is not the case.  At present, the cloture rule prevents either party from readily enacting an agenda that does not reflect the popular will.