Over at the Monkey Cage yesterday, former Senate staffer Richard Arenberg worried that in the case of a tied Senate after the 2014 elections (with Vice President Joe Biden serving as the Democrats' tie-breaker), the filibuster might be doomed. In this view, the Democrats would go nuclear, reorganizing the Senate to allow legislation to pass on a straight majority vote. Kevin Drum had a smart response throwing a bit of cold water on it. I’d mostly agree with Drum here.
So what produces majority-imposed reform, anyway?
To begin with, preservation of the filibuster is a product of the balance Senators maintain between their needs as party members and their needs as individual politicians.
Senators tend to support eliminating filibusters because they want to pass the party’s program. What holds them back is their wish to preserve their rights as individual Senators, which given them personal leverage over policy. They also may oppose ending the filibuster because they fear retaliation (from a minority party threatening to “shut down” the Senate) and fear the prospect of life in the minority when the Senate flips control. But those are minor factors. The former, as we have seen over the past few months, just isn't a very compelling threat, while the latter requires a longer-term horizon than most politicians typically hold. But the ability to influence policy whenever they want? That’s something Senators won’t surrender easily.
There are at least four variables that push for or against majority-imposed reform.
1. The Stakes. This is by far the most important one. It’s why, as Drum says, it’s not terribly likely that Democrats would go nuclear on the legislative filibuster during a time of divided government: Given the severe difficulties of passing legislation with the Republican House, there’s just not that much at stake. At the same time, majority parties are going to be far more likely to change the rules if the out-party uses the filibuster frequently -- especially if it is perceived to be violating filibuster norms, as Bush-era Democrats did by blocking several circuit court picks, and as Obama-era Republicans have done by filibustering judicial and executive branch selections across-the-board and engaging in "nullification" filibusters that essentially blockade entire agencies and a key Federal circuit court.
2. Frustration. The closer the majority party is to 60, the more it will be tempted to act. It’s highly unlikely that a party with a slim majority would bother to eliminate the filibuster, because it couldn’t even guarantee that a majority-rules Senate would always work in its favor.
3. Length of Majority: The longer a party is in the majority, the more likely it is to push for majority-imposed reform. Minority party senators usually sing the praises of filibusters, which makes killing the filibuster trickier when they gain the majority. The longer the majority lasts, the fewer senators are on record lauding the filibuster, and the fewer are faced with a flip-flop!
4. Party Strength: If filibuster positions reflect the tension between senators' roles as party members and as individual politicians, then it matters to what extent senators think of themselves as party members or as individuals. It’s also likely that the emphasis changes over time and is indicative of the overall strength of the parties.
All of which explains why Republicans came close to going nuclear on judicial nominations in 2005, and why Democrats did go nuclear for nominations in 2013. Both were long-standing majorities in control of the Senate and the presidency and facing high levels of obstruction. In addition, both had solid majorities in an era of strong parties. It’s probably worth noting, too, that both were in the first year of a presidential term: simple-majority confirmation wasn’t going to backfire for a while.
It also suggests that the most likely scenario for killing off the legislative filibuster would be a Democratic landslide in 2016, one that ushers in a House majority and a large (but sub-60-vote) Senate majority. At that point, it would be extremely tempting for Democrats to finish what they started last year. It’s possible that Republicans could go nuclear if they win big in 2016; the main missing ingredient would be length of majority, but everything else would be in place.
I do think that Arenberg is correct that curtailing the filibuster on presidential nominees in 2013 has made it more likely that some future majority will eliminate the legislative filibuster, as well. For what it’s worth, I also agree with him that the filibuster should be preserved, although I’d like to see considerable change – which is most likely to happen if a future majority threatens to go nuclear. I doubt, however, that would result from a 50/50 Senate in 2015.
To contact the writer of this article: Jbernstein62@bloomberg.net.
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