By Mike Dorf
In my post on Sunday, I asked whether there is a logical basis for drawing the particular line that Sen. Harry Reid's plan to end the filibuster for executive nominees would have drawn: between executive nominees, on the one hand, and judicial nominees plus legislation on the other. In that post, I kept my analysis strictly non-partisan. To the extent that I considered party effects, I did so generically, asking about the party that controls the Senate, the party to which the President belongs, etc., rather than looking at it in terms of the Democratic and Republican parties.
In this post, I want to shift gears a bit and ask whether the filibuster is systematically better for one or the other of the particular parties. My analysis is prompted by the deal that the Senators have just reached to avert filibuster reform (for now). To judge from the reports, it looks like the Republicans blinked. Faced with resolve by the Democrats to eliminate the filibuster for executive nominees, the Republicans agreed to imminent votes for most of the stalled Obama executive nominees. The question is why.
The most obvious answer is that Republicans are currently in the minority in the Senate and so they currently value the filibuster more than Democrats do. In this view, support for or opposition to the filibuster is simply a matter of current politics. There's a lot to be said for this view, as you can verify by looking at what Senators tend to say about the filibuster. When a Senator's party is in the minority, he or she tends to praise the filibuster as a vital Senate tradition that ensures deliberation; when a Senator's party is in the majority, he or she tends to sound like more of a populist, complaining about the other side's use of the filibuster to frustrate the will of the majority.
However, filibuster politics is not only about the now. If it were, then the filibuster could not have survived as long as it has. Some party in the majority would have "gone nuclear" by now if all the Senators were thinking about was who benefits in the immediate term. Yet it's clear that Senators do worry about reciprocity, about what will happen in a future in which a current majority is in the minority.
Some of this fretting is probably about the pleasantness or unpleasantness of daily life. By most accounts, the Senate is a better place to work than the House of Representatives. It's not just more prestigious to be one of a hundred than to be one of 435. Nor is it that you only have to run for re-election every six years rather than every two (which, in practice, means more or less constantly). Those are important factors but in addition, the House is a much more majoritarian body in which members of the minority party have very limited ability to influence policy. By contrast, minority party Senators are important--and because many Senators are former Representatives, they understand how much less pleasant life can be in a body with less opportunity for minority members to influence outcomes. Thus, there is likely always some consideration of what will happen when the Senate changes hands.
But is there a permanent systematic bias either for or against the filibuster by each party? I think the answer is yes. Other things being equal, I think that Republicans (should) like the filibuster more than Democrats do. The reason is simple: Other things being equal, Democrats want the government to do things while Republicans want government to do nothing, and the filibuster makes it harder for the government to do anything.
To be sure, other things aren't always equal. There are plenty of contexts in which Republicans favor action and the Democrats favor inaction (e.g., passage of laws restricting abortion; confirmation of judges who will gut civil rights statutes; repeal of environmental regulation; etc.), and so any given Democrat might think that retention of the filibuster is justified, all things considered. My point is simply that overall the Republicans get more out of the filibuster than the Democrats do. That fact may have played some role in the Republicans blinking.