Belatedly Breaking Silence on Filibuster Reform

Before I move on to the point of this post, let’s raise our glasses to the lack of filibuster reform. Without the McConnell and Reed deal, we might have changed our blog’s name to some other obscure procedural reference. For now though, thank you filibuster for your resilience in the face of opposition (irony intended). Now, why didn’t the Senate reform the filibuster? There are a number of really great posts on this very subject from Gregory Koger (here and here), Steven Smith, and Jonathan Bernstein. If you haven’t read those, you should. For our part though, I made some fairly contrarian predictions (here and here). In short, we predicted why the filibuster would stick around and not be reformed.

One reason for this prediction is a different analytical frame. I used a historical/crisis perspective to analyze potential filibuster reform. I’m not going to argue that this is superior to the other perspectives listed above. Those scholars are entirely more knowledgeable than I on the filibuster and quite frankly have WAY more publications on the topic. Regardless, I thought it would be fun to recap how a historical institutionalist might interpret filibuster reform.

Generally speaking, historical institutionalists analyze how conflicting interests arise into moments of crisis. In this case, how will majority and minority competition in the Senate develop in such a way that procedural reform is necessary to solve the impending crisis? Now, measuring crisis is difficult and can be done using a variety of data. I used legislative production for simplicity. Granted, this wasn’t done systematically. I simply did so using my impression of legislative efficiency (really scientific, I know). This was a different tact to examine the filibuster; and possibly further removed from actual filibuster data. Many people observed the rise in cloture votes and invoked cloture as a sign that the filibuster was bringing Congress closer to crisis.

Rising cloture votes is certainly important to examining the filibuster but I don’t think it constitutes Senate crisis. Cloture votes are an indication of filibusters but they don’t really measure filibusters or minority obstruction for that matter. They measure how majority’s deal with filibusters. Is this important to Senate obstruction? Absolutely. Is it indicative of institutional crisis? Possibly, but it is certainly not the whole story.

We can’t discard the rise in cloture votes. It undoubtedly has a place in this discussion. However, we also need to consider how Congress, as a whole, was performing. And overall, the 111th performed well (very well by historical standards). In other words, filibuster frustration was due to inability to pass bills quickly. Not the inability to do anything at all. Here is what I mean. Filibusters mean less now than in the past. Changes in Senate rules have devalued the filibuster to an extent. The dual track system makes filibusters politically less costly (see Nate’s post). Before the dual track system filibusters stopped all legislation. Today the dual track system allows the Senate to continue in the face of filibuster threats to particular bills. So while the filibuster definitely slowed consideration for some bills, it didn’t prevent the Senate from legislating entirely. In short, while more time is spent voting on cloture, it doesn't completely halt the Senate's legislative productivity. It manages to continue passing legislation despite increased filibuster threats.

In this sense, the dual track system allows Senate to avoid complete institutional crisis. It serves as a buffer to filibuster reform. If the vast majority of the Democratic agenda was completely killed, it would have been reformed quickly. However, this wasn’t the case. The 111th Congress made monumental contributions to advancing gay rights, regulating the economy, and developing comprehensive healthcare policy, just to name a few. This production worked against institutional reform. Put simply: if it ain’t broke, don’t fix it.

Before you jump down my throat for saying the Senate isn’t broken, let me qualify that statement. Clearly, the use of the filibuster is a problem. It will probably be reformed in the relatively near future. However, what I’m suggesting is that the rise in cloture votes we see today is not an apocalyptic sign of institutional crisis but a characteristic of the modern, post dual-track, filibuster system. And while it’s important to consider this data, we need to keep in mind that it does not reflect pure obstructionism but how the majority chooses to deal with filibusters with a dual-track system. Until filibusters transform into more significant suppressive tool in the hands of the minority, we’ll continue to see the filibuster in its current form…at least according to this particular historical perspective.