July 5, 2009
The Senate Filibuster
The Senate Filibuster -Becker
The United States, as the name indicates, was formed as a confederation of independent states-initially only 13, but since expanded to 50. The first Federal government was based on The Articles of Confederation, but that was abandoned because it gave too little power to the Federal government. It was replaced in 1787 by the Constitution. Many governance rules have been a compromise between the growing power of the federal government, and the original vision of the country as a confederation of states that retain much of the legislative powers.
Posner describes the evolution of the Senate from a few members appointed by state legislatures to a much larger body elected directly by the voters of each state, where each member serves a 6-year term that is renewable indefinitely. Small states, like Rhode Island, have the same number of senators as the most populous states of California and New York. The Senate is an anachronistic byproduct of the original concept of a federation of states since in the modern world the federal government dominates state governments. The potential influence of a relatively small number of states is increased by the supermajority rule that is embodied in the filibuster.
The Senate filibuster is not a part of the Constitution, but is a rule the Senate established. However, the protection the filibuster gives to minorities does fit in with the belief of the founders of the nation that the power of majorities needs to be constrained in order to protect the interests of minorities. The Constitution, and the checks and balances among the executive, legislative, and judicial branches of government, are important ways they devised to rein in the power of majorities.
Whether someone likes or dislikes the use of the filibuster on particular issues usually comes down to whether they like the legislation that the majority is trying to pass. However, the evaluation of the Senate filibuster as a legislative rule should depend on whether filibusters have blocked desirable legislation more than they prevented the abuse of power by a majority, especially power by a temporary majority. Its main use during the past 70 years is not reassuring since Southern senators filibustered on several occasions against civil rights legislation in order to protect discrimination by Southern states against blacks. However, their filibusters did no more than delay the passage of this legislation, and the delay gave time for the South to become reconciled to the necessity of giving Southern blacks more equal rights.
The mere threat of a filibuster has sometimes discouraged the bringing up of bills in Congress, although these threats also probably only temporarily delayed passage of legislation with a strong and sustained majority interest. Even senators that oppose particular legislation hesitate to filibuster legislation that has a strong mandate since they risk becoming unpopular. Yet they may use the threat of a filibuster to extract a compromise more favorable to their position.
The use of the filibuster has been rising over time: the 110th Congress had over 100 closure votes to try to cut off further debate. The Democratic majority in the present Congress seemed intent on achieving a "filibuster proof" majority of 60 members. Yet, as Posner discusses, having just the minimum number of senators that can enforce the closure rule gives considerable bargaining power to Democratic senators who do not strongly endorse the Democratic position on particular legislation.
I generally support requiring super majorities in the legislature on a selected number of major issues because I believe the abuse of majority power is a greater danger in the world of big government than is the blocking of the majority's will. To be sure, the Senate filibuster is not the ideal way to do this, partly because it is not confined to major issues, and partly because the Senate is based on representation by states rather than by population. Nevertheless, the filibuster may well be better than the alternative of having just straight majority voting in both houses.
The Senate and the Filibuster--Posner
The U.S. Senate is a very peculiar institution. It was not when it started. It was created to be a check on the popularly elected House of Representatives, but also on the President, through its "advise and consent" power--the President's nominees for officials had to be confirmed by the Senate. Senators were not to be elected, but to be appointed by the state legislatures. The assumption was that the legislatures would want to appoint a person of distinction to represent the state. There were only 13 states (though more were envisioned), so there would be only (at the outset) 26 Senators. Their long terms (six years) would encourage expertise and a greater independence from popular passions than the members of the House of Representatives, elected for only two-year terms, could be expected to have. The Senate would, in short, be an elite, deliberative, and only indirectly democratic body.
The change in the character of the Senate since the Constitution of 1787 has been profound. Senators, as a result of a constitutional amendment, are now directly elected, and there are 100 of them. The combination of the amount of time that they have to spend raising money and tending to constituents, and the immensely greater populations of most states now compared to the eighteenth century, and the enormously greater size and complexity of the federal government, have resulted in Senators' being underspecialized, despite having large staffs. The filibuster (a creature of Senate rule rather than of the Constitution or a statute) creates a requirement of a supermajority to pass legislation to which there is substantial senatorial opposition, and rules or customs of senatorial "courtesy" give individual Senators considerable blocking power, for example power to delay confirmation hearings.
The result is that the Senate is an extremely inefficient institution compared to the House of Representatives, in which the majority is in firm command. And because there are so many more House members (435), they have fewer committee assignments and thus can develop greater expertise than Senators; in addition, although they run for office three times as often, they run in much smaller districts and often with little competition and on both accounts don't have to raise as much money in campaign donations as Senators do.
Since the Senate is very large and Senators are directly elected, it is unclear why there is a Senate--that is, why the federal legislature is bicameral. Bicameralism increases the transaction costs of enacting legislation, which can be good or bad (it is bad in national emergencies, as in the financial crisis of last September), and it also increases the cost of repeal, which on balance probably is bad, arbitrarily enhances the political power of sparsely populated states, results in many unprincipled and confusing legislative compromises, and diffuses responsibility for legislation. It is not clear that on balance we are better off with the bicameral system.
The filibuster is an incomprehensible device of government. A supermajority rule, whether it is the rule of unanimity in criminal jury trials or the supermajority rules for amending the Constitution, makes sense when the cost of a false positive (convicting an innocent person, or making an unsound amendment to the Constitution) substantially exceeds the cost of a false negative. But it is hard to see the applicability of that principle to Senate voting, given the other barriers to enacting legislation.
These reflections on the filibuster are prompted by the Democratic Party's recent achievement of a filibuster-proof (60-40) majority in the Senate. It might seem that since the President Obama and Vice-President Biden made such a strenuous effort to convert Senator Arlen Spector from the Republican to the Democratic Party, which put the latter within one vote of a filibuster-proof majority, they must think that having such a majority is a political asset. I am not so sure they do think that. It is easy to see why the conversion was in the Democratic Party's interest regardless of its potential effect on the filibuster; by eliminating one of the Republican Party's most prominent moderates, it contributed to the growing marginality of that party, as it becomes increasingly identified with a rather shrunken right wing.
I am not sure the filibuster-proof majority is a boon to the Democratic Party and program. Because if now the Administration's legislative program fails of passage or is mutilated in the course of passage, it will not be possible to blame an obstructive minority consiting of filibustering Republican windbags. Furthermore, the new voting alignment increases the power of every Democratic Senator, by threatening to align himself with the 40 Republicans in a crucial legislative showdown, to thwart the Administration's program or, more realistically, to insist on what may be costly compensation in the form of an amendment favoring an interest group that is important to his electoral prospects. Indeed, each of the Democratic Senators now has an incentive to play the hold-out in order to extract concessions, in any situation in which Republicans need only one or a very few Democratic defectors in order to defeat an Administration bill.