March 7, 2010
The Filibuster and Supermajorities
The Filibuster and Supermajorities-Becker
Although the American Constitution does not provide for the filibuster, the founders of this country were very much concerned about protecting the rights of minorities. The checks and balances between the Congress, President, and Judiciary built into the Constitution were designed to make it difficult to pass legislation that infringed on the rights of important minorities. The Bill of Rights was added to the Constitution to solidify this protection.
Alexander Hamilton, James Madison, and John Jay in their essays in the superb Federalist Papers argued for the Constitution against a skeptical New York public. They recognized the necessity of having a constitution that protected minorities from "ephemeral" majorities, and they claimed the separation of powers, and other aspects of the Constitution, would succeed in protecting most minorities. The founding fathers were not believers in a naïve form of democracy where simple majorities should always have their way.
Posner gives a brief history of the evolution of the filibuster rule in the Senate. The requirement that at least 60 senators, or 60% of the senate members, are needed to impose cloture and cut off debate is not an overly stringent requirement for issues of any real significance. The size of the supermajority needed to cut off debate is considerably smaller than the Constitutional stipulated two-thirds majority required to overcome a presidential veto of a bill sent from Congress. Surely, for example, a simple majority should not be sufficient to commit a country to a major war, for that could involve both a large sacrifice of the lives of men and women from different regions and backgrounds, and much higher taxes and the creation of large amounts of public debt, although I do not believe any senator has ever tried to filibuster against US entry into a war.
Several senators from the South in the 1950s tried to use the filibuster to block civil rights legislation. Since for almost a century after the Civil War the South had been preventing its sizable black population from obtaining a decent education, good jobs, judicial protection, and common decency, many in the North were outraged at this filibuster attempt to block the provision of better education, voting rights, and other protections to Southern blacks. Nevertheless, the civil rights legislation would require major changes in the South, and it is not unreasonable that more than a simple majority of Senate votes should have been necessary to implement these momentous (and also highly desirable) changes. However, it should have been possible during the 1950s when Southern senators were filibustering to use a supermajority in the Senate to invoke cloture to end the filibuster.
The many proposed changes in health care in the House and Senate bills is the most controversial and important of all the current bills working their way through Congress and President Obama's agenda. Expenditures on health care currently absorb 16% of American incomes, and this percentage continues to grow. Since many of the changes in these health bills would have large effects on taxpayers and patients, any major new health bill should be subject to a possible filibuster that would require the votes of at least 60 senators to cut off further debate.
The President has said that the debate has gone on long enough, and that further prolonged debate on health reform would be useless. He therefore proposes to use the "reconciliation" procedure to avoid any filibuster and allow a health bill to be passed with a simple majority in the Senate (and of course the House). I cannot say whether this is a wise political maneuver, but I do believe the use of reconciliation in this case is harmful from the point of view of the country's welfare.
Despite the long debate, many provisions of both the House and Senate bills remain highly controversial. These include, among many others, the way the uninsured would get coverage, the de-emphasis on health savings accounts, the postponement until 2018 of the elimination of the tax advantages from expensive employer-based health plans, no increase in the ability of persons and companies in one state to contract with insurance companies located in other states, and especially the minor efforts to raise out of pocket expenses by consumers of health care in order to reduce their overuse of doctors, drugs, and even hospitals. Such a badly designed health care bill would on the whole worsen rather than improve the American health care system, and it should not be allowed to slip by through the back door of reconciliation.
So my conclusion is that the supermajority requirement of invoking closure to cut off Senate debate is useful protection not only to minorities, but also to overly hasty passage of controversial legislation. People on all positions will sometimes be frustrated by the need to have such a supermajority, but in the long run most of the time they will be happy that such rules are in effect.
Should the Senate Abolish the Filibuster? Posner
The filibuster is usually thought a peculiar institution unique to the U.S. Senate. Actually it originated in the ancient Roman Senate, has a long history in the British Parliament, is found in the legislatures of other English-origin nations as well, and was at one time employed by members of our House of Representatives. Until quite recently it consisted simply of a legislator, or group of legislators, refusing to yield the floor, thus preventing the legislature from conducting other business. Strom Thurmond appears to hold the record, having spoken on the floor of the Senate for 24 hours uninterruptedly. Before there was a rule of "cloture" (a vote to limit debate), filibusters could be defeated only by the majority's remaining in session, ready to vote on the bill being filibustered, until the filibustering senators gave up, exhausted. Since 1975, a vote of 60 senators (previously it had been 67) can limit debate and thus end a filibuster.
Filibusters have become increasingly common (and therefore cloture votes as well), and this is usually ascribed to growing political polarization. But a simpler explanation is that because the Senate is busier than it used to be, the announcement of a filibuster is generally enough to impel a cloture vote—the majority doesn't want to take the time to try to wear out the filibusterers. If there are enough votes for cloture, the filibuster never takes place; if there aren't enough votes, the majority gives up and abandons the bill that was to be filibustered. Hence the cost of filibustering has plummeted.
The filibuster, especially in its present streamlined form, creates a supermajority requirement to enact federal legislation. Supermajoritarianism is not unknown to the U.S. Constitution, which requires a two-thirds majority to overcome a presidential veto and a two-thirds vote to send a constitutional amendment to the states for ratification and three-fourths of the states must vote to ratify for the amendment to be adopted. But there is no supermajority requirement to enact ordinary legislation that the President does not veto, though the framers of the Constitution may have known that there were filibusters in the House of Commons and if so may have realized there could be filibusters in the Senate. The Senate could abolish the filibuster by changing its rules to allow a simple majority to end debate on a bill. It is true that Senate rules require a two-thirds vote to change a Senate rule, but it is possible that the two-thirds rule could be changed by a simple majority.
There is no pressure in the Senate itself to abolish the filibuster. The reason is that it benefits all Senators, not just those who expect to be in a minority, because it arms every Senator to demand concessions in exchange for voting for cloture. Several Senators exacted what seemed exorbitant concessions to induce them to vote for the health reform bill.
The usual criticism of the filibuster is that it is undemocratic, but this is imprecise, quite apart from the fact that the Constitution is riddled with undemocratic features (such as the amendment provision that I mentioned and the rules for the appointment and tenure of federal judges, not to mention the Electoral College and the entitlement of every state to two Senate seats regardless of population). A supermajority requirement for the enactment of legislation should just increase the "price" that the committed majority must "pay" for the votes of the uncommitted or strategic holdouts. If 49 Senators oppose or pretend to oppose some bill and threaten a filibuster, the majority needs to pry only nine of the opponents away from the opposition bloc to defeat the filibuster threat. The majority can offer concessions quite unrelated to the bill; alternatively, rather than "paying off" prospective filibusterers, they may be able to threaten to withhold support from them on issues more important to them than defeating the bill favored by the majority. If the holdouts are members of the majority party, the leadership may be able to coerce them by threatening to deny them choice committee assignments.
And in fact historically the filibuster has rarely resulted in paralyzing the federal legislative process. The usual example of where it did paralyze it is the filibustering of civil rights legislation by Southern Senators such as Thurmond and Byrd in the 1950s. But it has been argued that the filibuster would have been overcome had not many Northern Senators been only lukewarm in their support of civil rights; and it does seem unlikely that the civil rights revolution could have come much earlier than it did.
What has awakened controversy over the filibuster is of course the election of Scott Brown as Senator from Massachusetts in place of the deceased Ted Kennedy. It is assumed that since the Senate and House had each voted a health reform bill—in the Senate, over an attempted filibuster—and the Democrats retain a strong (59 to 41) Senate majority even after Brown's election, were it not for the filibuster a health reform bill would now be law. This is far from certain. The Senate and House bills were different in a number of respects, and the differences would have had to be ironed out in conference and a single draft then have had to be approved by a majority in both the House and the Senate. With the vote on the House bill having been excruciatingly close, and a majority of the general public being opposed to either bill, an attempt to enact a compromise bill might have foundered. Conversely, a single bill may still be enacted, despite Brown, with the aid of the "reconciliation" procedure for thwarting filibusters by a simple majority vote. That procedure is intended for bills designed to reduce federal debt, but has sometimes been used outside its intended scope—and by both parties. The Administration appears to be desperate to obtain passage of a health law by hook or crook, as otherwise the capacity of the President and the Democratic Party to govern will be called into question.
There is an argument for the filibuster, and hence for a supermajoritary requirement, in the case of the health care program being pushed by the Administration. Because the program is unpopular among the general public, its enactment by a simple majority in both Houses would raise a valid question about the representative character of Congress. Not that a legislature should always bow to popular opinion. The theory of American government is representative rather than direct democracy (the latter illustrated by the referendums in California and other states—the Constitution makes no provision for federal referendums), and the representative is intended to season his constituents' opinions with his own judgment rather than act simply as a transmission belt. But the health care program has been kicking around in Congress for a year, and the inability of its supporters to convince the public of the program's wisdom, coupled with the program's enormous cost and its potentially disruptive consequences for the health care industry—the largest in the United States, accounting for a sixth of our $14 trillion Gross Domestic Product—and indeed the entire economy, may make people question the democratic legitimacy of enacting the program with just a simple majority in the House and Senate.