Last week, the Democratic majority of the United States Senate eliminated the rule requiring a supermajority vote to end debate—and thus to move to a merits vote—on Presidential nominations to the lower federal courts and executive offices. Republicans charged that Democrats who supported the change were casting aside a cherished Senate tradition; Democrats responded that Republicans left them with little choice by routinely blocking President Obama’s nominees, thereby discarding the longstanding understanding that the filibuster should be reserved for extraordinary cases; and Republicans have, in turn, warned that Democrats will live to rue the day when they exercised the “nuclear option,” because someday Senate Democrats will find themselves in the minority.
Did the Democrats foolishly seek short-term advantage at the cost of long-term interest? Is the filibuster an equally double-edged sword that protects whichever party happens to be in the minority in the Senate? As I explain in this column, the answer to the latter question is yes with respect to nominations, but no with respect to legislation. Because the Republican Party believes in a less active role for government than does the Democratic Party, the ability to block action via the filibuster is a more potent tool for Republicans than it is for Democrats. Thus, although last week’s rule change provided Democrats with only a short-term advantage, complete elimination of the filibuster could serve their long-term interests.
Some Filibuster Background
The possibility of a Senate filibuster is a product of the cloture rule, which, prior to last week’s change, required sixty votes to end debate on most matters before the body. That rule itself has been amended at various points in American history, perhaps most significantly in 1975, when filibustering became easier—because Senators no longer were required to hold the floor continuously in the fashion of Jimmy Stewart in Mr. Smith Goes to Washington—but breaking a filibuster also became easier in 1975—because following the rule change, cloture could be achieved by a vote of 3/5, rather than the 2/3 previously required.
Still, given the tendency of American politics to produce divided government, it is rare for either major party to have a 60-vote majority in the Senate. Accordingly, even the post-1975 cloture rule has been widely and accurately regarded as giving the party in the minority in the Senate a powerful tool for blocking action.
How the Filibuster Systematically Advantages Republicans
Who benefits from the requirement of a supermajority for Senate action? Obviously, the minority party in the Senate—so long as the minority has at least 41 Senators and can maintain party discipline.
Do either Republicans or Democrats gain systematic benefit from a supermajority cloture rule? If one thought that, over the long run, one party or the other was more likely to hold the Senate (but with fewer than 60 Senators), the answer would be clear: the other party would benefit from the supermajority cloture rule. However, given the tendency of the major parties to adjust their platforms in order to attract votes, it is difficult to predict a long-term systematic advantage for one party or the other.
At least, that logic holds with respect to judicial and executive branch appointments. To the extent that the minority party in the Senate can block the appointments of a President from the Senate majority party, the minority party can frustrate the agenda of the other party by hamstringing the executive and limiting the President’s ability to reshape the federal judiciary.
Yet the parties are not symmetrically situated with respect to legislation. Although we can expect each party to tweak its positions to attract swing voters, one difference between the parties is deeply entrenched: Democrats are more likely to believe in activist government than Republicans are. Of course, such statements are only relative. Republican Richard Nixon presided over a substantial expansion of the federal regulatory state, while Democrat Bill Clinton, declaring an end to the era of big government, ended the federal welfare guarantee. But it remains true that, other things being equal, Republicans want less government than Democrats do.
And for that reason, the ability to filibuster legislation systematically advantages Republicans over Democrats. Supermajority rules make it more difficult to enact legislation, which makes it more difficult for government to act. Republicans should generally be pleased, and Democrats should generally be displeased, with that result because, other things being equal, Republicans do not want government to act, whereas Democrats do want government to act.
A Caveat Regarding the Status Quo
Before concluding that it is in the interest of Democrats to move to eliminate the filibuster for legislation, we need to consider an important caveat to my analysis: Supermajority rules make it difficult to change the legal status quo, but if the legal status quo favors government action, then supermajority rules lack the anti-action bias that I have described. If government programs are ubiquitous, then Democrats, rather than Republicans, gain from the supermajority requirement for legislation, because Democrats benefit from retaining the status quo of activist government.
The caveat is especially important for government programs that remain in full force without the continual need for new legislation. Tax rates and so-called entitlement programs are a good example. If Democrats are happy with the existing status quo on these matters, then they benefit from supermajority rules that make such laws and programs difficult to amend.
But the caveat does not apply universally. Many government programs—and especially the sorts of non-entitlement and non-defense programs about which Democrats care very deeply—depend on annual (or more frequent) funding legislation. Thus, even if a Republican minority in the Senate lacks the votes to eliminate the Environmental Protection Agency or to repeal the Endangered Species Act, the supermajority voting rule for legislation enables Republicans to achieve the next best thing: to block funding for programs they would like to eviscerate.
A Lesson of the Government Shutdown
Moreover, as demonstrated by the brinksmanship we saw during last month’s government shutdown and near-default on government obligations, a determined minority can threaten to refuse funding as a tool to obtain legislative changes that it cannot achieve directly.
To be sure, the government shutdown and near-default were driven by a Republican minority in the House of Representatives, not the Senate, but that only shows that a different supermajority rule—the so-called “Hastert rule”—can be used to achieve what the cloture rule may also be used to achieve. And while Republicans lost the stare-down with President Obama this time around, a determined minority party will not always lose. Indeed, the sequester that still hamstrings the federal government is a product of Republican success in using the threat of government default in 2011 as a means of achieving collateral spending concessions from the President.
The Future of Filibuster Reform
If my analysis is correct, then Democrats have little to fear from the Republican threat of tit-for-tat retaliation the next time Republicans are in the majority. Elimination of the cloture rule for legislation would likely serve the long-term policy goals of Democrats more than those of Republicans, by generally making it easier for government to act, which, all things considered, is what Democrats want.
Should Democrats fear the elimination of the ability of a Senate minority to filibuster Supreme Court nominees? Hardly. Two current Justices were nominated to the high Court by Republican Presidents and confirmed by fewer than 60 votes in the Senate—Clarence Thomas and Samuel Alito. Yet Democrats did not filibuster either of them, nor is there any evidence whatsoever that the first and second Presidents Bush, who respectively nominated Thomas and Alito, would have named more conservative jurists had they not feared the possibility of a Democratic filibuster. Indeed, it is hard to imagine what a Justice more conservative than Thomas would even look like.
If Republicans follow through with their threatened retaliation and permanently inter the filibuster the next time they hold a Senate majority, they will be acting against their own long-term interests. Perhaps that explains why Senator Reid was ultimately not deterred from going nuclear.