Tuesday, November 26, 2013

Looking for a Principle That Explains the Shape of Filibuster Reform

By Mike Dorf

In my latest Verdict column, I discuss filibuster reform in the Senate. I ask whether Democrats should fear that when Republicans next control the Senate, they will abolish what's left of the filibuster. I conclude that with respect to appointments, the filibuster systematically favors neither Republicans nor Democrats (assuming equal likelihood of control of the chamber over the long run, which is what one would predict in a two-party system). I also argue, however, that over the long run, the ability of 41-50 Senators to filibuster aids Republicans because, other things being equal, Republicans are more likely to win by preventing the government from doing anything than Democrats are. Even though "the era of big government is over," as President Clinton said, Democrats still favor bigger government than Republicans do--and that means that the ability to prevent Congress from doing anything is, on average, more useful to Republicans than Democrats. So if Mitch McConnell is threatening to do away with the filibuster for legislation as well as appointments, Harry Reid should reply: "Bring it on."

Here I want to ask a question that is raised by the latest change: Is there any principled basis for it? The Senate (or rather, nearly all Democratic Senators and no Republican Senators) voted to retain the requirement of 60 votes for cloture on legislation and Supreme Court nominees but to go to a rule of simple majority for cloture on appointments of executive officials and lower court judges. I assume that there are numerous political and pragmatic accounts one could give for drawing the line there, but the question is whether there is any reason of principle. My answer is maybe.

The case for the filibuster is weak with respect to executive appointees, who are supposed to carry out the President's program. The Senate has a role to play in ensuring the professional qualifications of such appointees but beyond that, it is hard to see why a minority in the Senate should be entitled to prevent the President from assembling his or her own team.

The case for the filibuster is also fairly weak with respect to ordinary legislation. It's true--as Washington reportedly said to Jefferson--that the Senate's purpose is to cool hot passions, and a supermajority requirement for ordinary legislation serves that purpose. But the Constitution pretty clearly indicates that the ordinary Article I, Section 7 process for legislating requires only a majority vote of each chamber. That's a negative implication from the Constitution's inclusion of specific supermajority requirements for other matters, such as overriding a veto, proposing constitutional amendments and ratifying treaties. And the Senate can play the role of "cooling saucer" even without the filibuster, simply by virtue of the longer, staggered, terms that Senators serve. In preserving the filibuster for ordinary legislation, perhaps the Senate Democrats who supported Reid's nuclear option disagreed, thinking that the filibuster remains important for the cooling function of the Senate.

The case for the filibuster is probably strongest with respect to judicial appointments.  After all, federal judges and Justices serve for life and are meant to be politically independent. In principle, a super-majority requirement for judicial appointees should induce Presidents to nominate moderates rather than ideologues.  (For an argument along these lines, see Christopher Eisgruber's The Next Justice.)  But it doesn't always work out that way, especially not lately.

Is there a reason to distinguish between lower court judges and Supreme Court Justices? Here I suppose one might say that a filibuster should be reserved for extraordinary circumstances and that lower federal court judges simply don't exercise sufficient power to render the nomination of any particular judge extraordinary. By contrast, we can at least imagine a Supreme Court nomination presenting extraordinary circumstances that warrant the extreme step of a filibuster.

All that said, like most commentators, I expect the filibuster to disappear in all incarnations at some point in the not-too-distant future.