Friday, January 16, 2015

End the Filibuster

by Michael Dorf

It will come as no surprise to regular readers of this blog that I am not optimistic about the legislation likely to emerge from the new Congress. However, I do see one possible salutary outcome: Perhaps Republicans in the Senate will "go nuclear" and abolish the filibuster for ordinary legislation.

When the Democrats abolished the filibuster for executive appointments and lower court judges in 2013, Republicans cried foul. Senators Alexander and McConnell warned, in essence, that what goes around comes around. Now that the Republicans have their Senate majority but fewer than 60 seats, it will be tempting for them to follow Harry Reid's lead and finish off the filibuster for ordinary legislation. (They have no incentive to eliminate it for Supreme Court nominees during a Democratic Presidency; more about the Supreme Court in a postscript below.) Democrats should be sanguine about this possibility.

The filibuster is bad for small-d democracy for the obvious reasons. The point is not that the 60-votes-for-cloture rule gives rights to a minority. Constitutional democracy is not simple majoritarianism. It is consistent with, and indeed often requires, respect for minority rights. But there is no reason to think that this particular protection for minority rights--allowing a numerical minority in a body that already overwhelmingly overrepresents small-state and rural interests--is needed. I wouldn't necessarily say that the current cloture rule is unconstitutional: Article I makes each house the arbiter of its own procedures, after all, and a supermajority for cloture has been with us for a very long time. But the fact (if it is a fact) that the current cloture rule is constitutional does not mean it's a good idea.

Granting that allowing a simple majority to end debate (except perhaps for a conventional "talking" filibuster) would be good for small-d democracy, might it nonetheless be bad for Big-D Democrats? The short answer is no. Allowing the Senate to pass bills with only 51 votes would still leave President Obama with a veto, which can only be overridden by 67 votes in the Senate. So as a practical matter, little changes for the next two years.

To be sure, presidents don't like to have to use their veto power. They think it makes them look weak. Accordingly, since the 2010 midterms, Senate Democrats have protected President Obama from needing to veto more than a couple of bills. Republican abolition of the filibuster for ordinary legislation would necessitate more vetoes, but a second-term president in his last two years in office has little to lose on that score. Obama's threatened veto of a bill approving the Keystone pipeline indicates that he has reached that same conclusion.

What about the long run? Presumably some day there will be a Republican president and Republican majorities in both the House and Senate, but with fewer than 60 Republican Senators. Do Democrats have more to lose from being unable to block legislation in that scenario than they have to gain from the ability to enact legislation in a future when there is a Democratic President with Democratic majorities in both the House and Senate? That question is in some sense unanswerable, of course, but other things being equal, Republicans benefit more from gridlock than do Democrats because Republicans are generally more hostile to regulation.

Here too there are subtleties. Democrats stand to lose when Congress repeals existing laws, not just when it fails to enact new laws, and so making it easier for Congress to legislate also create risks of excessive deregulation. But on the whole I think those risks are outweighed by the risks of gridlock. Even without repealing existing laws, a blocking minority can gut those laws by denying funding for enforcement. So over the long run, it seems to me that Democrats benefit more than Republicans from abolition of the filibuster for ordinary legislation. Accordingly, if Harry Reid is a good long-term poker player, he will obstruct Republicans at every turn, thus goading the Republicans into abolishing the filibuster in a fit of pique.

Postscript: One potential consequence of abolishing the filibuster for ordinary legislation is that political barriers will be lowered for abolishing the filibuster for Supreme Court nominees the next time that a President nominates a Justice for a Senate with a sub-60-vote majority of his party. It seems to me that this would be more or less a wash. It would make it easier for Republicans to nominate conservatives and for Democrats to nominate liberals, at least when they control the Senate. In his 2007 book The Next Justice, Chris Eisgruber (now President of Princeton) argued that retaining the filibuster made the most sense for judicial (especially Supreme Court) nominees because it pushed presidents to name moderates, which is desirable in an ostensibly apolitical branch. That may be true in theory, but the last decade or so suggests that the possibility of filibustering Supreme Court nominees will eventually lead to gridlock. Indeed, quite apart from the cloture rule, the trend line for recent nominations suggests that it may be impossible for a president to get anybody confirmed by a Senate controlled by the other party, and so abolishing the filibuster for the Supreme Court might be needed just to maintain nine Justices on the Court.


Shag from Brookline said...

Re: the Postscipt: Brian Leiter's Hastings College of the Law Lecture )1/12/15) "Constitutional Law, Moral Judgment, and the Supreme Court As Super-Legislature" is critical of the nomination process for Justices as lacking transparency in better understanding how a nominee might, if s/he passes Senate approval, decide cases before the Court. With or without the filibuster for voting on such nominees, the lack of transparency will not be resolved. [Note: Leiter does not comment on CJ Roberts' "umpire" role on the Court expressed during his process before the Senate.]

The "Lecture" can be accessed via links at Larry Solum's Legal Theory Blog or the Originalism Blog.

Joe said...

I agree the filibuster should be abolished. There are some half-way ways to do this (e.g., in effect, only allow it one time in the process, only allow "talking" filibusters). Finally, there still is going to be ways to delay given the slowness of the process and multiple bottleneck possibilities.

As to federal judges, in the last few decades, there were various methods used to block them, not all pure filibusters. See, e.g., Joan Biskupic's book on Sotomayor.

The concern about picking moderates again is of limited concern. First, there are ways to pressure Presidents, including other bottlenecks. If Senate and President of are different parties, the need is questionable as it is. And, it was clearly abused the last few years.

Second, the filibusters and quasi-filibusters of recent years moderated things how? The "Gang of 14" settled things during the Bush years and a bunch of really conservative judges came in.

An open process as suggested by Shag's comment can be more important here and I think Kagan was right the first time with her article on legitimate questioning (before she changed her mind when she was at the dock). With modern methods and publicity, there is some better vetting anyways & confirmation hearings are not as token as some suggest.

Joe said...

ETA: There was no big problem of a bunch of radical left types coming in under Obama either, partially since he was not inclined to do that. A few strongly left leaning or right leaning judges will come in -- election has consequences. And, it has been noted that Obama picked his battles. Again, you don't need a filibuster to delay & choices will be made.

Unknown said...

I have to disagree. The filibuster should be retain but as a talking filibuster, instead of the procedural hiccup it has become. The idea of 1 Person making a stand, saying to the nation, "My motivation for holding up the nation's business is so important and being so ignored I am willing to stand and talk until I drop from exhaustion," speaks so loudly about the passions of Individuals to the point One cannot help but notice. While I disagree with those motives sometimes, other times I do agree and I really like the idea of a lone Individual working to metaphorically turn the tide of discourse because it speaks to Our ideals of 1 Person being able to make a difference. I would vote the talking filibuster should stay for any business of the Senate as a whole, as opposed to the work of committees/subcommittees.

Joe said...
This comment has been removed by the author.
S~F said...

The "Lecture" can be accessed via links at Larry Solum's Legal Theory Blog or the Originalism Blog.
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Kakak Pertama said...

I agree with those motives sometimes.

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Emma O'Connell said...

Shag's comment can be more important here and I think Kagan was right the first time with her article on legitimate questioning (before she changed her mind when she was at the dock). With modern methods and publicity, there is some better vetting anyways & confirmation hearings are not as token as some makeup brushes
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