ELECTIONATE NOVEMBER 28, 2012
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At various points over the last decade, Democrats and Republicans have recognized that filibuster reform is badly needed to improve the functionality of the Senate, especially for nominees and appointments. Of course, that view has never been held by both parties at once, since the Senate minority is reluctant to limit its primary source of leverage. But after the Republican Senate minority thwarted many of President Obama's legislative initiatives for two years, support and opposition to filibuster reform seems to extend beyond the narrow interests of empowering the current Senate minority or majority. Liberals are convinced that gridlock stymies their agenda, while conservatives often perceive the 60-vote threshold—the supermajority needed to overcome a filibuster—as a critical bulwark against a deluge of liberal legislation. Elsewhere on this website, a prominent article on filibuster reform carried a subtitle characterizing the filibuster as "the biggest obstacle to Obama's agenda." It's true that the filibuster has been an asset to conservatives recently, and the argument that reform empowers liberals makes sense in principle: liberals are generally advocates of change, while conservatives tend to favor preserving the status quo. But for the foreseeable future, a 60 vote threshold in the Senate is not the biggest obstacle to the Democratic agenda, and Republicans aren’t the party of the status quo. To the extent that partisans support or oppose filibuster reform under the assumption that it helps Democrats and hurts Republicans, they might want to think twice.
With the GOP holding the House, Democratic-leaning legislation isn’t exactly piling up on Harry Reid’s desk. If Democrats had a good chance at retaking the House, perhaps filibuster reform would do more for the Democratic agenda. But between the advantage of Republican incumbency, partisan gerrymandering creating fewer competitive districts, and the inevitable concentration of Democrats in urban districts, Republicans are poised to hold an advantage in the House for at least a decade and probably longer. The results of the 2008 presidential election illustrate the extent to which the map is tilted in the GOP’s favor: While Obama won the popular vote by 7.3 points in 2008, he carried just 239 of today’s congressional districts; earlier this month, House Republicans won at least 233 seats while losing the House popular vote in an election that Obama won by more than 3.5 points nationally.
Another national wave akin to 2006 or 2008 could plausibly give Democrats control of the House, which could combine with filibuster reform to grant Democrats a fleeting opportunity to enact the most ambitious elements of their agenda without Republican support. But for the foreseeable future, the Democratic agenda isn’t as ambitious as one might expect for the party of “change.” Other than climate legislation, there aren’t many big, partisan Democratic initiatives that would struggle to find enough Republican and conservative Democratic support to break a filibuster in any scenario in which Democrats hold the House, especially since any Democratic wave sufficient to take the House would carry Democrats close to a filibuster-proof majority in the Senate. Perhaps new measures to combat income inequality, regulate the financial industry, or respond to emerging issues might eventually fill out a futur Democratic agenda, but big, new Democratic initiatives will be hampered by demographics and persistent budget deficits. Those same forces give renewed purpose to long-time conservative hopes to reform entitlement programs, and in such an environment Democrats may well have more at stake in preserving past accomplishments than enacting new reforms. President Obama acknowledged as much prior to the election, and Democrats might be wise to remember that the House of Representatives passed the Ryan budget, and a GOP Senate and President without the constraints of the filibuster could have easily followed through.
Just as favorable circumstances could permit Democrats to take all three branches of government, Republicans could easily take the Senate or overcome their disadvantage in the Electoral College. Even during periods when one party has held an obvious electoral advantage, presidential candidates from the weaker party have occasionally won, as presidents Wilson, Eisenhower, and Carter did. Given the state of the world economy, a GOP rebound—perhaps as soon as 2016—isn't far fetched, especially since Republicans aren't facing electoral obstacles as formidable as the ones Wilson, Eisenhower, or Carter faced. Although Democrats hold an impressive 55 seats in the Senate, no structural advantage underpins the Democratic majority, let alone one commensurate with the GOP’s in the House. Indeed, geography ought to provide Republicans with an edge in the Senate, even if they haven’t capitalized on it. After all, 23 Romney states were generally considered non-competitive, compared to 15 for Obama. Whatever Democratic advantage exists in the Senate endures only through incumbency.
Is there a greater chance that Republicans or Democrats seize the presidency and both houses of Congress? It’s hard to say. But with Democrats possessing a relatively limited agenda and few means of getting it past the Republican-controlled House, filibuster reform offers little to no promise of advancing the Democratic agenda in the short term, with the exceptions of appointments and nominees. Over the medium to longer term, it's hardly clear that the Democrats are the party of change. The passage of the Affordable Care Act means that Democrats have completed the third and final piece of the social safety net. With the exception of climate change or perhaps a single-payer health care program, it's hard to conceive of any large, comprehensive pieces of legislation on the Democratic wish list that would face unanimous Republican opposition. For now, the biggest partisan items on the two major-party platforms lie on the GOP side of the ledger, and that seems likely to represent the new norm. Republicans are unified around a series of large and controversial measures that possess little Democratic support, like reshaping the tax code and reducing entitlement programs. Persistent budget deficits, an aging population, and rising health care costs will make it more difficult for Democrats to propose expensive new programs, while ensuring sustained GOP pressure on entitlement programs. And after Bush's push for Social Security privatization or the Paul Ryan budget, there shouldn't be much question about whether Republicans are likely to act on these issues if the opportunity arises. Filibuster reform is still necessary to improve the functionality of the Senate, but if Democratic support for filibuster reform is motivated by the prospect of long-term partisan gain, perhaps Democrats should think twice before disarming the filibuster. And perhaps Republicans should revisit their opposition to reforming it.
15 comments
I don't often say this, but incorrect, Nate. Democrats should think negative once about disarming the filibuster. It should have been done in 2008, most obviously, and probably should have been used as bargaining leverage in 2010. (Perhaps it was, since the Grand Bargain of the 2010 Lame Duck looked quite lopsided in favour of the Democrats: Rs gave a kingdom to preserve the top-end Bush tax cuts.) Currently, Democrats are more of a status quo party with latent structural disadvantages in the House and the Senate. However, unlike at any point since World War II, the Democratic caucus is reasonably united around passing centre-left legislation if they get the chance. They are also staring at structual advantages with the fuller electorate if the Republican party fails to reform. In response, Republicans have activated the Tea Party monster and are having a difficult time controlling their party, making them structurally weaker and unable to take full advantage of their natural ins to the Senate. They also are structurally weaker when it comes to candidate quality and haven't been making a positive policy case to the American public that they should win national elections. Thus, the presidency in 2016 is currently an uphill climb for the Republican Party--even before you factor in the Hillary juggernaut against a domestic economy that is improving much better than most of our competitors. With proper organization and message propagation, 2014 can actually be swung into a small wave election for the Democrats, based on the fact that Republicans are STILL eager to be seen as denying health care from millions of their own constituents and Democrats simply need to campaign by launching photo opportunities with white working class people who see the fruits of majoritarian economic policy. Given all of these priors, I could possibly see using filibuster reform as bargaining leverage, but there's not much to be done in the Senate besides confirming all of the backed-up nominees that Obama has while Democrats possess a clear majority. This is the highest congressional priority for Democrats, and if Republicans ever retake the Senate under the party's current configuration, you can be absolutely certain they would have disarmed the filibuster. The Ryan budget was a massive policy reorganization capable of being passed under reconciliation. But remember that the last time Republicans held the Senate they replaced the parliamentarian and almost eliminated the filibuster in part. Eliminating the filibuster is their number one priority if they get lucky and win the presidency, since it doesn't require the party to moderate. It's much more preferable that we eliminate it on our watch and reap the benefits, rather than complain in a few years that the Ruthless Party that heeds no norms or precedents is indeed a Ruthless Party.
- chaitless
November 28, 2012 at 8:37am
The ability of the Democrats to block Paul Ryan budget type legislation will continue to allow voters to support Republicans when they don't support their policies, knowing (consciously or not) that the Democrats can block the Republicans. If the Republicans take the Senate and Executive, let them adopt the extreme policies and then see how voters react. I'm both an upper case D Democrat and a lower case D democrat; let the majority rule. Get rid of the filibuster and make both sides take responsibility for their policies.
- rayward
November 28, 2012 at 9:24am
The filibuster must go. The American people need to vote without a net. If they vote for GOP's destructive policies, they should live with them. We would then see clear differences and feel distinct consequences of GOP and Dem policies. The Dems protecting (white) seniors from themselves should fall with the filibuster. It probably feels good to vote against Obama if you're a white conservative GOP winger, but not so good when a President Romney hands out vouchers and tells you and your 89 year old wife to go find health care-- because, freedom! Yeah, let's do away with that filibuster.
- gwhitaker
November 28, 2012 at 9:25am
Cohn lays out a classic political argument here, which may or may not be the correct analysis, but which is ethically bankrupt at best. The filibuster is wrong. It would be bad in a popular legislature (which the House comes at lease somewhere near approximating, the gerrymander notwithstanding), but is utterly without justification in a legislature that is already highly anti-democratic due to its constitutionally mandated lack of population balance. Make no mistake, the Republicans who block action with the threat of filibuster don't represent 45% of the US population - they were voted into office by barely 20% of the voting US electorate.
- IowaBeauty
November 28, 2012 at 12:29pm
"While Obama won the popular vote by 7.3 points in 2008, he carried just 239 of today’s congressional districts;" Has anyone calculated this for the 2012 election; i.e, how many Congressional districts did BHO carry this time?
- stanmvp48
November 28, 2012 at 1:09pm
I love this analysis. Not sure if it is correct, but it is well worth considering. I have no problem circumventing democracy to achieve a more humane society. As Madison remarked in the Federalist, the object of government is justice. Democracy is a means, not an end.
- Vogelfam
November 28, 2012 at 2:07pm
" I have no problem circumventing democracy to achieve a more humane society." Right. But the filibuster is just as good or better for circumventing democracy to achieve a less humane society. More importantly, democracy is not just a means to an end - democracy sets a standard for treating all people with dignity and justice, by establishing that at the fundamental level of their relationship to government, people are to be treated as equals. Anti-democratic mechanisms like the filibuster have a far richer history of being used to preserve privilege than of being used to preserve broad based rights in no small part because of this. It's just harder to take broad-based rights away in a democracy than in anti-democratic forms of government precisely because they are democracies.
- IowaBeauty
November 28, 2012 at 2:29pm
Well, Vogelfam brilliantly expressed the "ethically bankrupt" analysis by Cohn in a few words: "circumventing democracy to achieve a more humane society" should send chills down any thinking citizen's spine. Calculating probabilities of political balance and assessing precise legislative scenarios is the weakest defense of the filibuster imaginable. What's more, it's easy to imagine filibuster reform (make them talk!) that both improves government functioning and keeps it as an emergency possibility. I would rather see the filibuster abolished entirely, but would be happy with just a modest improvement in the current abysmal situation--one in which the Congress is incapable of fulfilling its basic function.
- polcereal
November 28, 2012 at 3:15pm
"Filibuster reform is still necessary to improve the functionality of the Senate, but if Democratic support for filibuster reform is motivated by the prospect of long-term partisan gain..." There's the problem with the article. Support for reform is not motivated by the desire for partisan gain but to improve the functionality of the Senate. Consequently, all the near-term political calculations are irrelevant. If you can't win with a majority vote, then the solution is to go out and win more seats, not to use parliamentary tactics to block stuff you don't like. Otherwise, it's going to get increasingly difficult to get anything done regardless of party since rarely will either side have 60 seats.
- dsimon
November 28, 2012 at 5:30pm
Allowing the GOP, should they gain control over the executive and both chambers, to inflict incalculable pain and suffering on the weak and the elderly in the name of democracy--or to demonstrate how disfunctional their ideas are--should send chills down the spine of any thinking person.
- Vogelfam
November 28, 2012 at 6:51pm
Does anyone doubt for an instant that if the Republicans had taken the Senate with 51 votes that they would abolish the filibuster immediately? Let's do it while we have the chance.
- wnalpert
November 28, 2012 at 9:46pm
Vogelfam: If the GOP would inflict such misery, then our solution is to win elections so that it doesn't happen. If we don't, then elections should have consequences. The filibuster prevents elections from having consequences, both bad and good. Had there been no filibuster, health care reform would have looked different. The stimulus would have been different. Financial reform would have been different. But the filibuster also destroys accountability. When people see gridlock in the Senate, they see a Democratic majority as unable to get things done. They don't pay attention to process, so Republicans don't get sufficient blame for the stalemate. They don't pay a real political price for obstructionism, so they get away with it. To have a functioning democracy, this lack of accountability has to end.
- dsimon
November 28, 2012 at 11:10pm
Be careful what you wish for.
- skahn
December 6, 2012 at 12:38am
comments here have been as useful as the relevant post. and i am glad. despite what seems to be little early interest in much having to do with 2014, i do think elections make the best difference respecting results in congress (both chambers), and not with undue attention to members and their rules. generally, the filibuster is a poor excuse for persistent advantage. as a first step toward reform, i do favour the "talking filibuster" rather than procedural or threatened filibusters. nate has explained the stalemate. and others have rightly acknowledged, as nate might, what potentials might also be taken into account at the same time.
- cdmcl3
December 6, 2012 at 8:41pm
If we didn't have the filibuster, would anyone be arguing that the Senate needs it? It's a profoundly anti-democratic rule that, as dsimon pointed out, undercuts accountability and resulted in far different (and I would argue worse) health care legislation than we otherwise would have had. In addition, from a partisan point of view, it's a more powerful tool in the hands of the Republicans than it is for Democrats, since the Republicans have proven far more capable of maintaining a united front.
- Thunderroad
December 6, 2012 at 9:04pm