Voting rights, Trump's Big Lie, and Republicans' problem with minorities
How a biased filibuster hurts Democrats more than Republicans
Democrats are divided over what to do with the filibuster. Proponents of reform emphasize that the Senate cloture rule is frustrating the party's ambitions on voting rights, climate change and more. Opponents worry that eliminating the filibuster will come back to bite when Republicans regain control of the Senate and, more generally, that it will further degrade congressional norms of cooperation and forbearance.
The standard case against filibuster reform has some force - Democrats paid a price during the Trump administration for their Obama-era decision to abolish the filibuster for lower-court judgeships - but it misses an important asymmetry between the two major political parties. Above and beyond its downsides for whichever party controls the Senate at a given time, the filibuster disproportionally disadvantages those with ambitious legislative agendas. And any way one measures it, the contemporary Democratic Party is more legislatively ambitious than the contemporary Republican Party.
In the late 20th and early 21st centuries, Congresses controlled by Democrats held more committee meetings, considered more bills and passed more bills than Congresses controlled by Republicans. Democratic presidents, moreover, generated significantly more policy proposals than their Republican counterparts.
Crudely put, Democrats want to enact lots of federal laws; Republicans don't.
The first Congresses of recent presidencies illustrate this asymmetry. During the two years in which Democrats controlled the House and Senate under President Obama, Congress enacted major economic, health care, financial regulatory and civil rights legislation on party-line or near-party-line votes. The Trump administration also controlled both sides of Pennsylvania Avenue during its first two years. Yet its "sole significant legislative accomplishment" during this period was a tax bill, and its only other high-profile legislative undertaking was a failed attempt to repeal the Affordable Care Act.
In addition, the existing carveouts from the filibuster serve Republicans much better than they serve Democrats. The most important of these carveouts is the budget reconciliation procedure, under which Congress can tax or spend with a bare majority. This arrangement is ideal for a party whose top legislative priority is tax cuts. Although Democrats can also pursue some parts of their agenda through this procedure, as reflected in the recent infrastructure bill and the spending bill currently wending its way through Congress, reconciliation is of little use to achieving the party's legislative goals on topics ranging from immigration to criminal justice to civil rights.
The "structural bias" of the filibuster against Democrats becomes even clearer, and more disconcerting, in comparative perspective. A supermajority requirement for the passage of ordinary legislation is not the norm either in U.S. state legislatures or in other countries' national legislatures. And even without the filibuster, the U.S. lawmaking system already contains more veto points - more distinct phases when a bill's progress can be halted - than that of any other advanced democracy. Different actors in four institutions (the House, Senate, executive branch, and Supreme Court) can effectively kill legislation. Yet whereas most of these other veto points are hard-wired into the Constitution, the filibuster can be changed by a simple Senate majority at any time.
It is true that eliminating the filibuster would mark a significant shift in U.S. governance, and that such maneuvers can be dangerous if they lead to escalating cycles of partisan retribution. But the risk of escalation is relatively modest here. Reforms to the filibuster would not lead the country down a slippery slope to pure power politics. The bottom of this particular slope is majority rule within the Senate - and a lawmaking process that would still be more onerous than that of virtually any other democracy.
The modern filibuster, in short, is both anti-democratic and anti-Democratic, and much of the alarmism around its possible demise is unwarranted. Given this, Democrats should focus their attention on the precise organization of a post-filibuster Senate. Two principles, we believe, ought to guide this effort.
First, beware of clogging up the Senate floor. Recent calls to revive the "talking filibuster," under which senators who wish to block a bill would have to remain on or near the floor, have the intuitive appeal of raising the costs of filibustering. But a talking filibuster could have perverse effects. One of the scarcest resources in Congress is time, and for all the flaws of the current filibuster, it at least allows one bill to be debated and voted upon while another is being blocked. Unless designed to permit such dual-tracking, a talking filibuster could make the Senate even less productive.
Second, beware of making the Senate even more undemocratic than it already is on account of the two-senators-per-state rule. To see what the institution might look like without the filibuster, consider the Senate votes to pass the Trump tax cuts and to confirm the last three Supreme Court justices (none of which was subject to the filibuster). Those Senate majorities each represented well under fifty percent of the American people. One of us has proposed a way around this problem: a "popular-majoritarian cloture rule" that would require, as a precondition for ending debate, the agreement of a majority of senators who collectively represent a larger share of the U.S. population than the senators who oppose cloture. There are other solutions too. Whichever is preferred, Democrats revisiting the filibuster should recognize the risks of contributing to minoritarian governance if reform is not done carefully.
Getting these details right is hard. But recognizing the asymmetric effects of the filibuster helps to clarify the stakes of reform - and how those stakes vary across the aisle. As long as Democrats define themselves as the party of legislative ambition, the choice to change the filibuster should be an easy one.
Jonathan Gould is an assistant professor at Berkeley Law School. David Pozen is a professor at Columbia Law School. Their article on "Structural Biases in Structural Constitutional Law" is forthcoming in the NYU Law Review.