October 26, 2009

One question that has been bothering me of late is the insistence by Senate majority leaders that they achieve the magical 60 votes to secure cloture and avoid a filibuster on legislation containing any variant of the public option. I had occasion at a friend’s housewarming party this weekend to run this past several colleagues of mine.  (Out of respect for them, they shall remain nameless. Much of the beer-and-pretzels discussion revolved around adult diapers, sweat lodges, Strom Thurmond, and the New York Yankees, so I’d hate to sully anyone’s good name. Suffice it to say, all of those I spoke with are reasonably familiar with the policy process.)

Word on the blogostreet is that the Obama Admin is pushing back on Harry Reid to accept a less robust public option because they think he doesn’t have enough votes for the more robust plan. Inside the Senate itself, it appears that folks like Russ Feingold are encouraging Reid to ignore the supermajority altogether. Some democrats are even threatening to filibuster any bill that does not have a public option. Nate Silver takes up a related issue, and Jane Hamsher points the finger at Harry Reid to ask what he’s hiding. The theme is also picked up herehere, and probably elsewhere.

“Why do folks care so much about the supermajority?” I asked, popping candy corns in my mouth.

I hate candy corns. But I continued…

All it takes to pass a bill in the Senate is a simple majority. If a filibuster happens, it’s not the end of the world. Each senator gets a limited number of shots (two, I think) to delay the proceedings. When their biological system tells them that they have to hop off the podium, that counts as their one shot. They sit down, attend to their biological systems, get cleaned up, and prepare for their second shot. When that’s done, the filibuster is over. Simple math gets us to a few weeks of delay tactics — maximum. Political logic says it’ll be an impasse for a few days and then one party will look silly, another party will look like heroes, and it’ll be done. I would guess a repeat of the Clinton/Gingrich government shutdown.

At any rate, you can read about the procedural rules of the Senate here, and check out the procedural filibuster here. If he so desired, Harry Reid could force the opposition to forgo the procedural filibuster and to carry out an actual, real-life, diapers-cots-n-popcorn filibuster.

So what’s the deal?  Why doesn’t Reid do that?

The best answer I got was from my colleague. Let’s call him “R.” According to R, the reason that the Senate wants to avoid a filibuster is because “that’s the way they do things in the Senate.” R suggested that the Senate has a bunch of unwritten codes of etiquette. (One might think that if etiquette were to prevent anything, it would certainly prevent senators from wearing adult diapers to a filibuster. Apparently not. Etiquette is kooky like that. My colleague “T” was particularly enthusiastic about a senatorial diaper service. But I digress.) What would the reasoning be for continuing to do things this way? Well, that’s the way they’ve always done things, answered R.

As any entering ethics student knows, just because that’s the way things are done, or just because that’s the way they’ve always done things, does not at all count as a reason to say that that’s the way things should be done. Maybe they should do things differently.

And that, I think, is an interesting question. Is there something about Senate procedure that justifies these rules of etiquette — particularly, the rule of etiquette that requires a 60 vote supermajority that would elide the discomfort of a filibuster? What are the arguments for and against allowing a filibuster?

Seems to me that one principle of the upper chamber of a bicameral legislature should be that it allows for cooler and more rational deliberation. Clearly, that was the idea behind limiting the size of the US Senate, as well as lengthening terms of senators. Moreover, it also makes sense that in such a high chamber, one would want to argue for open-ended deliberation. As a good deliberative proceduralist, I agree: the Senate should have open-ended deliberation. It’s important to have open-ended deliberation, particularly on tricky issues like health care. Cloture closes down discussion, where filibuster keeps it open.

But that’s where I get stuck. The filibuster is, by definition, the antithesis of deliberation. It is obstruction.

So what else might favor it? Well, some seem to think that the filibuster offers power to the minority to prevent tyranny of the majority. That’s a plausible claim, except that the majority makes fast work of the minority in every majoritarian vote. Requiring a 3/5 majority for cloture would seem to allow tyranny of the minority. (Set aside, for this discussion, that the numbers are themselves reasonably arbitrary — 1/2, 2/3, 3/5 — there’s no particular ethical significance to any of these numbers; except, arguably, the 50-50, but even that is disputable.)

Maybe then it’s to prevent particularly volatile legislation from passing, like civil rights or health care, which is, in effect, a way of preventing the tyranny of the majority. One would only filibuster if one is willing to stake one’s career on it. External political considerations apply. This seems much more reasonable to me: the filibuster should be used and employed only in very limited cases; cases in which one is really willing to stick one’s neck out to slow down the process. It is important to deliberation, partly because it signals the magnitude or intensity of opposition to a given issue.

And that’s when the question of etiquette returns. Assuming that times such as these are the appropriate times to use a filibuster, isn’t Harry Reid’s rule of etiquette (urging senators to achieve a supermajority) in fact undermining the deliberative principles of filibuster? In other words, seeking a supermajority is effectively undercutting deliberation by jerry-rigging the legislation so that it appeals to at least 60 senators. It is instituting too high a standard, too high a threshold, and thereby watering down intense opposition by watering down the legislation. I think that may be what’s irksome about it.

That could be seen as good or bad. Good, maybe, because the emergent legislation is more tempered. Bad, maybe, for the same reason, because the emergent legislation has fewer teeth.

“R” then pushed me in yet another direction: consider if the tables were turned. What if the Senate were trying to get through some legislation that I did not favor? (I favor a robust public option, if it’s not clear.) Good question. Obviously, this has been the case in recent years, and there have been times where I’ve been cheered by the bravery of some to filibuster.

Maybe for the same reason, I think the same applies: the filibuster seems to allow debate, even if the floor vote is more-or-less settled. If the procedures are such that 51 votes are what are required for passage, and it takes 60 votes to secure cloture, it seems to me that on an issue as important as X, I should allow space for the filibuster instead of pushing the legislation through several rounds of etiquette-induced vote wrangling. Not only does this wrangling change the upshot of the legislation that the majority accepts, but pushing for cloture simply shuts out opposition. That strikes me as incredibly counterproductive to the objectives of the Senate, which is supposed to be a deliberative body.

Don’t know. That, at least, is my current thinking on the issue. I’m certainly open to being persuaded otherwise.

One final thing. After researching this for a while, puzzled by the etiquette response, I uncovered a slightly different, more political, answer: that the filibuster really is a giant wad of bubblegum in the gears. I find it hard to fathom what it would be like to live through a true diapers-n-cots filibuster; and I have to believe that the political stakes would be enormous for anyone undertaking such a task.  (At the same time, Strom Thurmond clearly came down on the wrong side of history, and he survived in many imponderable ways. So maybe the political stakes of filibustering aren’t that high after all.) Some politicians will surely opportunistically grandstand. Perhaps then, on political grounds, it makes sense to seek the supermajority. Hard to say. I worry only about the rightness of capitulating to etiquette. With legislation this widely supported, it seems to me that a filibuster would be the sort of thing that a politician, if she feels so strongly about it, should be allowed to stake her political career on.

A related observation is this, made by Politico: that basically, cloture is primarily a procedural vote. Reid may believe that he can get 60 votes to force cloture, but then only nail the 51 votes that he needs to get the public option passed. It is a little hard to see how a vote for cloture isn’t also a vote for the public option, given the near assurance that it will pass. At the same time, if the blue dogs are worried primarily about their constituencies, they can probably pull up the voting roster come election time and show, in fact, that they voted against the legislation.



  1. “A key goal of the Framers was to create a Senate differently constituted from the House so it would be less subject to popular passions and impulses. “The use of the Senate,” wrote James Madison in Notes of Debates in the Federal Convention of 1787, “is to consist in its proceedings with more coolness, with more system and with more wisdom, than the popular branch.” An oft-quoted story about the “coolness” of the Senate involves George Washington and Thomas Jefferson, who was in France during the Constitutional Convention. Upon his return, Jefferson visited Washington and asked why the Convention delegates had created a Senate. “Why did you pour that coffee into your saucer?” asked Washington. “To cool it,” said Jefferson. “Even so,” responded Washington, “we pour legislation into the senatorial saucer to cool it.””


    • Wait, R? You read the blogs?

      • Only rarely, and even then, only the very best.

  2. I think the real, knock-down, drag-out filibuster died because the filibusterers would just look stupid on C-SPAN. Of course the whole procedure is an anachronism, but then the same argument can be made about the Senate itself.

    I’m not sure it’s a meaningful exercise to look back two centuries in an attempt to understand what the filibuster meant in its original context since during the intervening time the Senate underwent a fundamental change from being chosen by the state legislatures to direct election.

    It was news to me that the majority can win a filibuster simply by waiting for the minority to use up its two-sessions-per-Senator limit. If so, Reid’s attitude toward filibusters looks a lot less defensible.

    Just now I heard that Reid is going with a public option with state opt-out. As political ju-jitsu it’s a slick move, although probably some people will die as a consequence should any state actually exercise the option.

    • Probably right. But then, if one accepts only to a procedural filibuster (which is the mere threat of a filibuster, and not an actual filibuster), this seems to me to undermine the principle notion that the filibuster could signal intensity of concern. If there are no (or very low) costs to me waging a filibuster, I could simply threaten to procedurally filibuster every bill I disagreed with.

      • Yes, and note also that there are non-filibuster manifestations of the syndrome, as with the current delay of many Obama nominations via Senatorial “holds” (and of course the Democrats took advantage of this when the show was on the other foot).

      • “shoe”

        Although perhaps “show” is more apt. 🙂

  3. […] to Suck.” It’s about the supermajority and procedural obstructionism, which I discussed here. Neat graph […]

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