Democrats are divided on what to do with the filibuster. Reform supporters point out that the Senate closing rule frustrates the party’s ambitions on voting rights, climate change and more. Adversaries to worry that eliminating filibuster will bite when Republicans regain control of the Senate and, more generally, that it will further degrade Congressional standards of cooperation and abstention.
The standard case against filibuster reform has some force – Democrats paid a price during the Trump administration for their Obama-era decision to abolish filibuster for lower court judges – but there is a lack of significant asymmetry between the two main political parties. Beyond its drawbacks to the party in control of the Senate at any given time, filibuster disproportionately disadvantages those with ambitious legislative agendas. And however you measure it, the contemporary Democratic Party is more legislatively ambitious than the contemporary Republican Party.
In the late 20th and early 21st centuries, democrat-controlled congresses held more committee meetings, considered more bills and passed more bills than Republican-controlled Congresses. Additionally, Democratic presidents have generated many more policy proposals than their Republican counterparts.
Basically, Democrats want to enact a lot of federal laws; Republicans don’t.
The first Congresses of recent presidencies illustrate this asymmetry. In the two years that Democrats controlled the House and Senate under president obamaBarack Hussein Obama’s Stephen Sondheim, legendary Broadway songwriter, dies at 91., Congress enacted major economics, health care, financial regulation, and civil rights legislation on party-line or near-party votes. The Trump administration also controlled both sides of Pennsylvania Avenue in its first two years. Yet it is “only significant legislative achievementâDuring this period was a tax bill, and its only other major legislative undertaking was an unsuccessful attempt to repeal the Affordable Care Act.
Additionally, the existing filibuster exclusions serve Republicans much better than Democrats. The most important of these exclusions is the budget reconciliation procedure, under which Congress can tax or spend by simple majority. This arrangement is ideal for a party whose top legislative priority is tax reduction. While Democrats can also continue parts of their agenda through this procedure, as evidenced by spending bills currently underway in Congress, reconciliation is of little use in achieving the party’s legislative goals on matters. ranging from immigration to criminal justice to civil rights.
The “structural biasOf the filibuster against Democrats becomes even clearer, and more baffling, from a comparative perspective. A qualified majority requirement for the passage of ordinary legislation is not the norm in US state legislatures or in the national legislatures of other countries. And even without the filibuster, the U.S. legislative system already contains more veto points – more distinct phases where the progress of a bill can be stopped – than that of any other advanced democracy. Different actors in four institutions (the House, the Senate, the executive branch and the Supreme Court) can effectively kill legislation. Yet while most of these other veto points are entrenched in the Constitution, the filibuster can be changed at any time by a simple Senate majority.
It is true that removing the filibuster would mark a significant shift in American governance, and that such maneuvers can be dangerous if they lead to escalating cycles of partisan retaliation. But the risk of escalation here is relatively modest. The filibuster reforms would not lead the country down a slippery slope towards pure power politics. The bottom of that particular slope is majority rule in the Senate – and a legislative process that always be more expensive than that of virtually any other democracy.
Modern obstruction, in short, is both undemocratic and undemocratic, and much of the alarmism surrounding its possible demise is unwarranted. In light of this, Democrats should focus their attention on precisely organizing a post-filibuster Senate. Two principles, we believe, should guide this effort.
First of all, be careful not to clutter the floor of the Senate. Recent calls to revive “obstruction of speech,” whereby senators who wish to block a bill would have to stay on or near the floor, have the intuitive appeal of increasing the costs of obstruction. But a talking buccaneer could have perverse effects. One of Congress’ rarest resources is time, and for all the shortcomings of the current filibuster, it at least allows one bill to be debated and voted on while another is blocked. Unless it is designed to allow for such a dual track, a talking filibuster could make the Senate even less productive.
Second, beware of making the Senate even more undemocratic than it already is because of the two senators per state rule. To see what the institution might look like without the filibuster, consider Senate votes to pass Trump’s tax cuts and to confirm the last three Supreme Court justices (none of whom have been subject to systematic obstruction). These Senate majorities each represented well under fifty percent of the American people. One of us has offers a way to get around this problem: a “popular-majority closure rule” which would require, as a precondition for the closure of the debate, the agreement of a majority of senators who collectively represent a larger part of the American population than the American people. senators who oppose the closure. There are also other solutions. Regardless of the preference, Democrats who revisit filibuster should recognize the risks of contributing to minority governance if reform is not carried out carefully.
It is difficult to get these details correctly. But recognizing the asymmetric effects of filibuster helps clarify the issues for reform – and how those issues vary from side to side. As long as Democrats define themselves as the party of legislative ambition, the choice to change the obstruction should be easy.
Jonathan Gould is an assistant professor at Berkeley Law School. David Pozen is a professor at Columbia Law School. Their article on “Structural biases in structural constitutional lawIs coming in the NYU Law Review.