by Michael Dorf
A report on Politico yesterday indicated that some Senate Republicans would like to change the Senate rules to lower the threshold number of votes needed to debate a bill from 60 to 51. The story considers a number of angles, including Tea Partiers versus Old Guard within the GOP. Here I want to raise questions about an unstated premise: that it matters.
Putting aside a number of details about the particular rules that might be changed, the basic premise of the story is that the 60-vote threshold for passing bills in the Senate enables a minority of 41 Senators to block legislation that would otherwise pass. But that's often false. Consider the present moment. Republicans control the House and the Senate, but with fewer than 60 votes, while Democrats control the presidency. In order to block legislation under such circumstances, it might appear that Democrats need 41 votes in the Senate or a majority in the House. But that's wrong. Even with a simple-majority voting rule in the Senate, it would only take 34 Democratic Senators or 146 Democratic House members (assuming party discipline, as these exercises do) to block legislation. Any time the parties divided ideologically, for the Republicans to could succeed in passing legislation they would need at least 67 votes in the Senate and at least 290 votes in the House to override a presidential veto. That's a much higher threshold than the Senate rules impose even without a change.
So why does the 60-vote threshold matter? Let's explore a few issues regarding legislation. (I shall initially bracket confirmation votes, which are now subject to different rules and which raise different issues because the House doesn't participate and there's no veto/override issue.)
First, the threshold matters when the same party controls both houses of Congress and the presidency. If a Republican were to become president but the Republicans had fewer than 60 votes in the Senate, then the difference between 51 and 60 in the Senate could be crucial, because the Senate would be the choke point.
Second, presidents do not like to veto legislation. Partly this is a matter of optics. Casting a veto is often a high-profile media event in a way that the killing of a bill on a cloture vote is not, so that a president casting a great many vetoes can be attacked as obstructionist. Perhaps more importantly, a determined Congress can attach ideological poison pills to otherwise-popular bills. Thus, a bill that includes many popular, uncontroversial measures but also, say, a rider defunding Planned Parenthood, can put the president to a difficult choice. The president would much rather that his allies in the Senate filibuster the defunding-of-Planned-Parenthood amendment to the bill when it's being debated in the Senate, so that he can simply sign the clean, popular measure.
How does all of this shake out? In most discussions of the cloture rule(s) and the filibuster, the point is made that Senators understandably take the long-term perspective: The party in the majority today might hesitate to replace supermajority rules with simple-majority rules for fear that the roles will be reversed in the not-too-distant future.
Yet it is quite difficult to predict over the long run which party will benefit from the filibuster and which from filibuster reform. Conventional wisdom now holds that the demographics give Democrats an advantage in the presidencey but that gerrymandering gives Republicans an advantage in the House and the equal suffrage of the states gives them an advantage in the Senate. If that trend were to hold then the pattern we now see--Republican majorities in the House and Senate with a Democratic president--would also hold. That would make the filibuster relatively unimportant, at least where the president is comfortable wielding the veto.
But I see no reason to think that the current alignment is permanent. A generation ago the pattern was reversed. From 1969-1993, Republicans controlled the White House for 20 out of 24 years, even as the Democrats controlled the House for all of that time and held the Senate for 18 of the 24 years. The switch reflects changing demographics, realignment, and a host of other factors, but if you believe in Duverger's Law (and really, who but Canadians doesn't?) then you will think that over time the parties will adjust to be competitive. It can take a generation or more for the dust to settle, but there's no reason to think that each party won't eventually hit upon a strategy that maximizes its strength in each institutional setting (at least until the next realignment).
Accordingly, I don't see the filibuster or cloture rule systematically favoring either party as a matter of simple vote counting.
Nor do I see an advantage to passing versus not passing legislation. If there were no laws on the books, it would make sense for progressives to want to lower barriers to legislation and for conservatives and libertarians to want to raise such barriers. But given a pretty pervasive regulatory state, blocking legislation that aims to repeal regulation will often be a goal of a progressive minority, and so the progressive-versus-libertarian question will not cut strongly in favor of a view about filibusters and cloture.
The one exception to that proposition is that there is a systematic reason why progressives will want to lower barriers to appointments in the executive branch. Especially when barriers to legislation are high but even when they aren't, activist government will depend on having a well-staffed set of agencies. Accordingly, whatever their views about the filibuster and cloture for legislation, it makes sense for Democrats to favor a simple-majority rule for executive-branch appointments, which is exactly what they did in exercising the "nuclear option" two years ago. That change also allowed judicial nominees (except to the Supreme Court) to be confirmed by a simple-majority vote, but the long term politics of the lower federal courts are more complicated, and so it's not obvious to me that lowering the threshold for lower court appointments was systematically beneficial to Democrats.