Some Observations on Calls for Senate Reform: Part One of a Two-Part Series

Posted in: Government

Recent weeks have seen members of both parties in the U.S. Senate, and President Joe Biden as well, offer thoughts and suggestions to improve ways in which the Senate is comprised and operates. Among the important topics being discussed are the filibuster device and the ability of governors to temporarily fill Senate vacancies. In the space below I offer a handful of observations on the former; in Part Two of this series, I explore the latter.

Filibuster Observation 1: Looking at State Experiences Can be Educational

An important feature of federalism is that some states often experience movements and confront problems before those movements and problems spread across the country and to the federal government. As folks in DC talk increasingly about reforming the filibuster rule in the Senate—the institutional requirement that most legislation be acceptable to 60 Senators before it can be voted on by the body—it is helpful to remember that much of what folks at the nation’s capital are going through now was experienced in California, the country’s largest and most complex state (and one that is often on the cutting edge of national trends) not long ago.

Supermajority rules—like the Senate’s filibuster requirement of 60 Senators to end a filibuster, and California’s requirement of a 2/3 vote in both chambers of the legislature to pass a budget and to raise taxes—can be a recipe for government paralysis when neither party has a clear supermajority and there is no significant cohort of moderate Democrats and Republicans in the legislative body in question.

In California in the early 2000s, moderates of both parties in both houses all but disappeared in the state legislature, with the result being that there was simply no ground on which to forge the bargains, compromises, and consensuses that supermajority requirements are, in theory, supposed to generate. As a result, for the better part of the first decade of this century, California—as analysts across the political spectrum seemed to acknowledge—failed to attack most of its systematic fiscal and policy problems, whether it be the antiquated energy grid and other parts of the infrastructure, the housing shortage, healthcare access, or a variety of other grand challenges. Instead, the state tended to limp from year to year with successive 12-month spending, taxation, and regulatory plans that were full of band-aids, gimmicks, and—more than anything else—procrastination. And in recent years we have seen the same pattern in DC, where budget deals are uncommon and continuing resolutions (that bring with them the periodic threats of a government shutdown) have been the norm.

Some might argue that the gap in the middle of the spectrum between the party poles in California is a function of factors that are unique to California. To be sure, the self-interested districting plan that California legislators enacted after the 2000 census to protect incumbents made almost every legislative district in both houses a safe one for either the Republican or Democratic party, such that party extremists (who tend to fare well in party primaries) never have to move to the middle to win the general election. And California does have an unusual demographic mix, in which the aging white component is increasingly reluctant to fund public services, a larger and larger portion of which are consumed by younger families of color.

But while the forces operating on the national scene might be less pronounced than those at work in California, they are not different in kind—aggressive gerrymandering and self-sorting demographic shifts that see Red and Blue citizens increasingly physically separated from each other in where they live, play, and worship are happening everywhere. As a result, the recent federal experience seems to be following California’s from a few decades ago. In both the U.S. House of Representatives and the U.S. Senate there are far fewer moderates—of both parties—than there were a generation ago.

One marker: During Ronald Reagan’s presidency in the 1980s, there were almost 20 Republicans in the Senate who were viewed in the same moderate political light as the only two or three (if that) Republican senators who are generally considered moderate today.

What has happened in California over the most recent decade? The short answer is that Democrats (for a variety of reasons) have been able to elect supermajorities in the state legislature and also have been successful in electing governors. While Democrats have had at least a simple majority in the legislature for well over a generation, in the last decade that majority has consistently crossed over the 2/3 threshold—today in both houses it is nearly 3/4—rendering the minority (Republican) party pretty helpless to fend off legislative actions it dislikes. Moreover, and equally importantly, Democrats have occupied the governor’s office for the last decade, whereas the seven years before 2011 the governor was a Republican (Arnold Schwarzenegger). As a result, California has set out in the direction of more liberal policies; some may find such policies disastrous, but the procrastination and inaction have eased.

It seems unlikely that either party in Washington DC will command large supermajorities anytime soon. So absent some compromise and party-line-crossing (which does not seem very popular these days), then eliminating or softening supermajority rules like the filibuster may be the only way to avoid a gridlock stalemate.

Filibuster Observation 2: Looking at the Senate’s Own Recent Past is Also Illuminating

Observation number two is that the recent angst over the filibuster is déjà vu all over again, kind of. Around 2010, Democrats were also considering revising filibuster rules, as the passage of large legislation, such as Obamacare, was barely accomplished on a party-line vote that circumvented the filibuster only because of technical loopholes such as tax-and-spend “reconciliation” exceptions.

And just seven or so years prior to that, in the middle of 2003, a Republican Senate majority, fed up with the Democrats’ invocation of supermajoritarian cloture rules, threatened repeatedly to “blow up” the filibuster by eliminating or revising it. (That approach was known at the time variously, depending on whether one supported or opposed the Republicans, as the “constitutional option,” or the “nuclear option,” respectively)

Do these episodes show that both parties are guilty of filibuster abuse when they are a minority, and also guilty of hypocrisy when they resist filibuster reform? Perhaps, but the matter is a bit more complicated.

For one thing, the filibuster (along with related anti-majoritarian procedural machinations in the Senate) was, after the election of Barrack Obama, being invoked by the Republicans at a truly unprecedented rate, perhaps as much as 10 times more frequently than 30 years prior.

For another, when Democrats energetically used the filibuster about 15 years ago, they were a minority in the Senate, but they (or at least their party) could claim to represent a majority (or at least a plurality) of Americans voting for U.S. Senators. For that reason, Democrats could argue (in a way that Republicans have not been able to this century) that they were using the filibuster to overcome the undemocratic nature of the Senate itself, which (because of the deal that needed to be cut to get small states to approve the Constitution) is often controlled by the party that received fewer votes cast for senators nationwide.

Granted, the Senate’s undemocratic structure is water under the constitutional bridge, but the fact that the makeup of the Senate (like that of the electoral college) is somewhat anachronistic, whereas the appeal to majority rule is more enduring, might make the Republicans’ current behavior all the more problematic.

Filibuster Observation 3: Senators of Both Parties Might be Reluctant to Act Precipitously, but for an Underappreciated (and Selfish) Reason

Of course the Democrats in the Senate could, as the party that has 51 votes (counting Vice President Kamala Harris) if they wanted to, do what the Republicans threatened to do last decade, and eliminate or substantially trim back the cloture requirement of 60 votes. Many analysts ask: If you can’t muster 60 senators to overcome a filibuster, then how can you get the 67 votes necessary to change Senate rules? The answer is: The 67-vote requirement to change Senate rules is itself embodied in a Senate Rule that could be changed by a simple majority.

Any other result would permit a bare majority of an earlier Senate to entrench its own decisions and extend its own lawmaking power well after it had been booted from office, in violation of deep constitutional and American values. Although a court would likely never rule on the question, an effort by a majority of senators to repeal the filibuster would be both legally valid and democratically acceptable.

One reason that may hold back either party from eliminating the filibuster, however, is that today’s majority might be tomorrow’s minority, and the Democrats today should be mindful of that reality (as the Republicans were in 2003). But long-term strategic thinking over the past several years has been complicated; on many issues (such as Court packing) some Democrats feel that not responding strongly to what they view to be unprecedently aggressive moves already undertaken by the other party is essentially waving the White Flag; better, the fire-breathers argue, to use the power while you have it, since the other side appears not to be constrained by longer-term mutually-assured-destruction deterrence reasoning when they hold the reins.

Yet there are still reasons why the filibuster remains unlikely to go away anytime soon. Individual senators in both in the majority and minority parties (as distinguished from the parties themselves) are reluctant to tinker with the senatorial system of personal privileges and procedural courtesies of which the filibuster is but a part, because that system gives each senator great power to pursue pet projects and extract earmarks for their home states. Blowing up the filibuster might also mean blowing up all the unjustified and extravagant personal perks that make being a senator so enjoyable. So (selfish) concerns about personal prerogatives may be more constraining than (principled) concerns about systemic stability.

Filibuster Observation 4: President Biden’s Suggestion to Return to the “Talking Filibuster” Raises Interesting Points

This week President Biden weighed in on filibuster reform, signaling provisional support to a return to a time during which a Senator (or a Party) that wanted to maintain a filibuster had to literally speak continually throughout the period of the filibuster to hold the floor and avoid a cloture vote. This practice, dramatized by Hollywood in movies like Mr. Smith Goes to Washington, has in recent times given way to more informal—and less onerous—methods by which one party can avoid cloture.

President Biden’s suggestion causes us to recall that one historical justification for the filibuster is that the device can promote discussion, deliberation and hopefully wise compromise, and not simply empower a minority with an absolute veto over policy action.  If this is the reason why a filibuster device may be worth preserving (and I should admit I think arguments for getting rid of it entirely or nearly so have always had great force), reforms along the lines offered by Democratic Senator Tom Harkin from Iowa over a decade ago deserve meaningful consideration.

Back then, Senator Harkin suggested that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated. Thus, for example, a cloture sought early in deliberations over a bill or other measure might require 60 votes to pass, whereas the requirement for cloture on a measure after the Senate is already days into the debate, might be re-set at 57 votes. Days later still, the requirement could be lowered to 54, and so forth.

In that way, a bare majority could not circumvent discussion and deliberation at the outset, but neither could a recalcitrant minority hold up majoritarian action indefinitely. This model is similar to that proposed by some persons who have been involved in reforming juries, and who would like to move away from the unanimity requirement for petit juries (and the absolute veto that such a unanimity rule gives to every holdout juror), but who also would like to encourage meaningful discussion within the jury before a criminal defendant is convicted.

Perhaps a move in this direction would be a good place to start.

Posted in: Government

Tags: filibuster, senate

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