For someone who studies congressional development, the past couple years have been frustrating. Many people with noble intentions proposed reforms to remedy our dysfunctional Congress. However, these discussions have almost universally missed the causes of gridlock and polarization. They offer remedies rather than cures. So, in this series – that will continue until I run out of ideas – I’m going to offer reforms that, in my opinion, are more crucial and fundamental to congressional operation, polarization, and the like. But before I do that, I need to debunk the worst proposal of them all… The filibuster. If I had a dime for every time somebody proposed filibuster reform… Now, before I lament why this reform is misguided, let me be clear: the filibuster needs reform. Its practice grossly misrepresents its intent (but not the Framers’ intent) and is generally a giant obstacle to majority government. But, that being said, it is not even close to the worst procedural device within the existing legislative process. Sure, it’s an easy target. I too often hear among colleagues, reporters, and friends alike, “if we could only reform the filibuster…” But more often than it is assumed filibuster reform is the silver-bullet for gridlock. We fix that, we fix gridlock and the problems it creates (i.e. the debt ceiling debate).
It’s not and here’s why: when polarization is the main problem, reforming Congress to make it more majoritarian will only exacerbate the existing problem. It will push the parties further apart, and effectively make the problem we have now much much worse over time. The already bad gap between the parties would become a chasm. Think about looking across the Grand Canyon. Now compare that to draining the Pacific Ocean to try and see Japan. That would be the size of the problem we would face and frankly, we can’t afford to make the already bad gap worse.
Here's an interesting hypothetical. Let’s assume for a second that the filibuster, cloture, and the 60-vote Senate does not exist. Let’s assume, as Matt Glassman described so well, that we effectively have two Houses of Representatives. What happens in a situation like today, where the chambers have split control between the parties? Nothing. Absolutely nothing. But it would be worse than that: negative-nothing (is this a thing?). With the current ideological division between the parties and two majoritarian chambers, neither party has an incentive to compromise with the other because 1) party leaders control the legislative process and have even less incentive to compromise with members of the opposite party within their chambers 2) the two parties don’t agree on much to begin with, and 3) each chamber holds a veto over the other. Legislation created in each chamber would be more ideologically extreme (because each chamber is effectively controlled by each party’s leader), and there would be even less overlap on bills passed in each chamber. I’d be amazed if that hypothetical Congress is more efficient than the current one.
Adding to the difficulty is divided government. I’m not going to fully delve into divided government (president and Congress split control), but this much should be said. Pending one party had control of both chambers, presidents' legislative power would diminish when competing against a truly majoritarian Congress (not necessarily a bad thing), and he/she would be forced to resort to more frequent vetoes (because legislation is passed more rapidly and because it is more ideologically extreme) to demand compromise… which probably wouldn’t happen to any significant extent. If the U.S. didn't have an independent executive, this wouldn't be as big a problem (like many parliamentary systems). But in the American system, it has just as much potential to deadlock the system as split chamber control.
Nothing about these scenarios suggest more “effective” government save one specific circumstance: unified government. Which, it turns out, resembles majority totalitarianism more than American democracy, something the Founders specifically sought to avoid.
So it’s not that filibuster reform is itself bad. It just leads Congress down a dangerous path: more extreme polarization in a system of shared power and checks and balances. That is, creating a majoritarian Senate is not inherently good when the results exacerbate an already bad problem, threaten just as much if not more inefficiency, and introduces the potential for tyranny of the majority (I mean this in a non-dramatic sense. I'm not suggesting 1984. But I am suggesting radical changes in policy from Congress to Congress). The Constitution is not a majoritarian document. In fact, it is decidedly non-majoritarian. It’s designed to prevent action/legislation, not spur it along. In a very real way removing the filibuster would strain the U.S.'s non-majoritarian Constitution... sort of like putting a jet engine in a pinto: lots of horse-power, not much control.
There are better reforms that could temper polarization and promote compromise, but the filibuster is not the first or even most effective change to acheive these ends. So, my main objective is to identify the institutional sources of polarization. My second, and much less definitive, objective is to offer some solutions that could help.
Next up: The Rules Committee.