The Filibuster: An "Accident of History"? On the Common Cause Lawsuit.

A few months back, we at the blog had a semi-regular series: “things institutionalists know that you should” (see for example see Josh on timing, Nate on Plott’s fundamental equation, and myself on the status quo bias of institutions).  This small series was inspired by similar lists on the fundamentals of political behavior (see for example, here).  Our list, by comparison, offers the neo-institutional fundamentals. Yesterday a federal court in Washington heard arguments that center on a thing “institutionalists know.”  In Common Cause v Joseph Biden, Common Cause and a group of private citizens are suing Vice President Biden (as president of the Senate) arguing that the filibuster is an “accident of history” and unconstitutional on the grounds it violates the principle of majority rule.  The lawsuit arose over repeated filibusters of the DREAM Act, which the petitioners argue would have passed were it not for the filibuster.  The goal of the suit is to have Senate Rule XXII, for which this blog is named, declared unconstitutional.

This highlights something institutionalists know well: that institutions—in this case parliamentary rules—have unintended consequences.  The filibuster is, indeed, a classic example (see Sarah Binder here).  Simply put, the filibuster arose out of a procedural lapse.  When the first Senate convened in 1789 it adopted a procedure known as the previous question. The previous question motion is a common parliamentary device used to close debate on a pending matter.  If you watched the movie Lincoln, you no doubt saw the previous question in action.  But in 1806 the Senate removed the previous burrquestion from its rule book (on the advice of Vice President Aaron Burr).  The House, by contrast, maintained the previous question which, today, gives a simple majority in the lower chamber the ability to quickly end debate (though as Sarah Binder points out, the previous question at the time wasn’t used in the manner it is today).  The obvious question is: Why would the Senate remove such an important procedural device from its rule book?  The simple answer: the previous question wasn’t used very often and was viewed at the time as superfluous (it was only used once prior to 1806).  As Binder argues, the reason for removing the previous question was simply to “clean up” the messy Senate rule book.  Removing the previous question motion wasn’t as problematic as its absence today for the obvious reason that extended debate was less obstructive in the early 1800s.  It wasn’t until 1837 that the first actual filibuster occurred.  First, the Senate was about 1/3rds its current size.  Second, the Senate’s overall workload was much lower.  And third, minority parties in this formative era were much smaller and thus less able to stymie the legislative process (from 1803 to 1823 the Federalists, the perennial minority, had an average of only 8 seats in the Senate).  Over time the lack of a previous question was compounded by the fact that the Senate, unlike the House, is a “continuing body.”  That is, the Senate’s rules carry forward from on Congress to the next and are therefore difficult to change.  In sum, a short-sighted change in the Senate’s rules back in 1806  morphed, over a long time span, in a manner that has major implications for the modern legislative process.  This was by no means a “rational” or “functional” outcome.

Which brings us to the Common Cause lawsuit.  While the petitioners may be right that the filibuster is an “accident of history,” for the reasons outlined above, that doesn’t make it unconstitutional.  Quite the contrary, in fact.  Article 1, Section 5 of the Constitution outlines the procedures governing the House and Senate.  And like many things in the Constitution, it lacks detail and nuance.  Well, expect for one important detail: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.”  Yes, Clause 2 of Section 5 gives both chambers the power to determine their own rules.  This makes the filibuster, and all other rules of the Senate for that matter, explicitly constitutional.  Courts have rejected similar legal challenges in the past, so unfortunately for Senate reformers, Common Cause’s lawsuit is not the answer.

Two additional examples of how institutions can have unintended consequences include the development of the American welfare state and the 435 member cap in the House.  In “Protecting Soldiers and Mothers,” Theda Skocpol shows us that the modern welfare state developed out of Civil War soldiers’ disability pensions (which covered the widows of decreased soldiers, hence the title of Skocpol’s book).  The long-term consequence of this policy was that, by the early 1900s, significant portions of the population were dependent on the pension.  The policy extending pension payments to soldiers’ wives evolved into a uniquely American “materialistic” welfare state (unlike the welfare systems of Europe).  A similar unintended consequences narrative applies to the 435 member cap in the House.  From the first census in 1790 to 1910, the size of the House increased along with population growth.  In 1920 House negotiators were unable to reach agreement on the reapportionment bill.   So in 1929 the Permanent Apportionment Act formally set the size of the House at its current 435.  Thus, the size of the House is not part of some rational design or larger constitutional principle, but the result of a critical event in political time and the path dependent nature of politics.