Debating the Filibuster and Obstruction in Congress

United State Senate the Office of Chris Murphy via Wikimedia Commons min
United State Senate the Office of Chris Murphy via Wikimedia Commons min

Could Eliminating the Filibuster Reduce Party Polarization and Partisanship in Congress?

By John Wilkerson and David Super. If you enjoy this piece, you can read more Political Pen Pals debates here.

Party Polarization, Party Competition, and Filibuster Obsolescence

By John Wilkerson – Donald R. Matthews Professor of Political Science, University of Washington

Floor voting patterns suggest that recent Congresses are the most polarized in history. (Although much of the recent increase in polarized floor voting can be traced to a 1970s procedural reform that added divisive amendment votes to the list of roll call votes used to construct voting scores (see Theriault 2008)). Another key contributor to party polarization was the realignment of southern conservatives in the 1980s and 1990s, before which southern Democrats and Republicans often voted together as an ad hoc conservative coalition. Realignment, however, encouraged polarization by tightly grouping members according to ideology. 

Other developments have contributed to party polarization, including a diversifying electorate and fragmented media. As a result, lawmakers are even less willing than they used to be to reach across the aisle. Republicans and Democrats do continue to cooperate on many issues, especially when scoring political points is less important (Adler and Wilkerson 2012). In fact, most legislation passes with overwhelming bipartisan support (Curry and Lee 2020). The exceptions are not trivial, however. Congress is stalemated on some of the most important issues of the day, including immigration, health care, climate change, and tax reform. 

The Reality of Bipartisan Cooperation and Compromise

It is often reported that voters want members of Congress to compromise—Democrats more so than Republicans—but the most partisan and attentive voters are the least willing to support it. Lawmakers who do openly work toward compromise, such as Mitt Romney, Lisa Murkowski, Susan Collins, and Joe Manchin, are actually better liked by voters of the other party than by voters in their own party. 

Could congressional reforms promote bipartisan cooperation and compromise? A central challenge of rules-based solutions is that congressional rules are endogenous: they are created and necessarily enforced by lawmakers. Accordingly, many inspired reforms have been undermined by conflicting priorities. For example, the budget reconciliation process, which was originally developed to promote responsible long-term budgeting, has become the last resort for pushing ambitious legislation through the Senate with just 51 votes. Program sunsets, which were originally developed to promote program reviews by forcing Congress to keep programs alive, are increasingly ignored through continuing appropriations. While members of Congress may agree on some things—that they spend too much time fundraising, too little time legislating, and struggle to compromise given journalists, lobbyists, and primary challengers watching their every move—it is difficult to resolve such issues in light of current laws and political incentives. 

The Minority Party’s Impact on Congressional Accountability

In my view, one of the most pressing problems that Congress faces today is distorted congressional accountability stemming from the minority party’s ability to obstruct the majority party’s agenda. Ideally, voters reward or punish lawmakers for policy outcomes. This pushes them to pass policies that voters support and to fix policies that aren’t working—but this is not how the congressional accountability system currently works. Our contemporary party polarization means that voters hold the majority party or the president’s party accountable for policy outcomes. This makes sense in the House, where the majority controls legislative procedure and determines policy. The problem instead lies in the Senate, where filibusters have become so common that 60 votes is the new threshold for passing all but the least controversial legislation.

Actual filibusters are rare. Instead, senators place holds on legislation and reserve the right to filibuster. The increased use of holds to obstruct the majority party agenda cannot be tracked because many holds are secret. This insider maneuvering is not appreciated by most voters. If the majority leader does not have 60 votes, he has three options: try to persuade lawmakers to withdraw their holds, bring up bills with the possibility of a filibuster, or withdraw the bill. We do not know how often the majority leader withdraws bills due to having insufficient votes required for cloture. We do know, however, how many cloture motions are scheduled and how often they succeed. 

The change in recent years is striking. In the 101st Congress (1989-90), 38 cloture motions were filed by the majority leader. So far in the 117th Congress (2021-22), 246 cloture motions have been filed. In the previous 116th Congress, 328 were filed. Cloture motions may also be used to limit debate and amendments by members of the majority party, but minority party obstruction is the best explanation for this deeply troubling trend. 

It is not surprising that the minority party wants to obstruct. The issue lies with Senate rules. They enable the minority party to gum up the majority party’s agenda without incurring any of the blame. Eliminating the filibuster would better align policymaking responsibility and electoral accountability in an era of party government. Such a reform could be implemented quickly using the so-called nuclear option, and it’s hard to imagine that the filibuster would ever be reinstated. After all, what majority would do that? 

Potential Consequences of Eliminating the Filibuster

The end of the filibuster would undoubtedly produce unanticipated consequences and much has been written about the potential costs of eliminating it. However, some of the most popular arguments against its elimination can be questioned. Perhaps the most prominent is that the Senate moderates the “fickleness and passion” of the House, as James Madison once put it. Importantly, this argument was not based on the filibuster but on senators’ longer terms of office and greater distance from constituents. The filibuster was a later development, and for most of the 19th and 20th centuries, norms discouraged senators from abusing it as they abuse it today. 

Furthermore, if the majority uses its newfound power as the Constitution originally intended to pass extreme policies, reversing those policies would be much easier. A minority of lawmakers will no longer be positioned to unilaterally prevent the repeal of unpopular policies, as is now the case. This is how a system of accountability should work—and does work in every state legislature and most democracies. Eliminating the filibuster may also strengthen Congress vis-a-vis the executive. Rather than leaving no option but executive action on contentious, stalemated issues such as immigration, Congress will be more likely to act as the legislative branch. 

It is also not obvious that eliminating the filibuster will lead to less bipartisan cooperation. It would be one thing if the minority party currently used the threat of the filibuster to bargain for policy moderation—but that is not how the filibuster is being used today. It is primarily used to obstruct the majority party’s agenda. A minority party that no longer has this invisible form of obstruction at its disposal may be more interested in working with the majority to move policies in a more moderate or effective direction. This way, the minority party continues to have policy influence in the House despite having no filibuster.

In short, the filibuster has evolved and it should be evaluated by its current use. It no longer serves a constructive purpose. Rather, it has become a tool of obstruction that distorts accountability—and with it, representative government.

Polarization, Negotiation, and Representation: the Role of the Filibuster

By David Super –  Carmack Waterhouse Professor of Law and Economics, Georgetown University Law Center

John Wilkerson’s thoughtful and interesting contribution quite appropriately notes that procedural systems must adapt to changes in the political environments they regulate or they risk becoming impediments to democracy. He also clearly demonstrates that U.S. politics have become far more polarized in recent decades, with that polarization reflected in greater partisan cohesion in Congress.

This, indeed, has coincided with a dramatic increase in the rate at which minority parties rely on the filibuster to block the majority party’s legislation, as measured by the number of cloture petitions filed. Some of the increase in cloture petitions likely reflects changes in rules and customs allowing “quiet filibusters” (i.e. holds secretly placed on legislation rather than senators holding the floor and droning on). In this environment, a cloture petition, even one with little prospect of success, may be the only way to “out” the obstructionists.

Accountability Vs. Bipartisanship

Although Professor Wilkerson’s title asks if eliminating the filibuster would reduce partisan polarization and competition, the norm on which he builds his argument is quite different. He posits that the filibuster is inhibiting democratic accountability by preventing the majority party from enacting its program. Democratic accountability is a worthwhile goal, but one largely in conflict with promoting bipartisanship. Bipartisan legislation inevitably contains provisions insisted upon by one party over the objections of the other. The details of those negotiations are typically far more obscure than the source of holds on high-profile pieces of the majority’s program. Promoting bipartisanship, therefore, requires a significant sacrifice in partisan accountability.

Our constitutional system of checks and balances, however, does not emphasize the efficiency of enacting the majority’s program the way parliamentary systems typically do. Instead, it seeks to require a consensus broader than a bare majority for action. Indeed, the original Constitution, which had no Bill of Rights, relied on the structural need to build a broad consensus as the primary means of protecting individual liberty. Although the filibuster, and partisan polarization, are of somewhat later vintage, they fit the core scheme of checks and balances well.

Under current rules, federal legislation ordinarily requires the concurrence of four entities: the House majority (to call up and pass a bill), the Senate majority (to call up and pass a bill), the Senate minority (to provide the additional votes needed to invoke cloture), and the president (to sign the bill). Almost inevitably, in our two-party system, each party will control at least one of those entities. Thus, enacting legislation is impossible without significant bipartisan cooperation. If one party is divided, a minority of its members may suffice, but on high-profile issues, polarization has made these sorts of divisions rare. Therefore, apart from a few narrow types of legislation immune from the filibuster—budget reconciliation, Congressional Review Act resolutions, reports from military base closing commissions—every piece of legislation enacted in recent years has been the product of bipartisan cooperation.

Diminishing the Relevance of the Minority Party

If the legislative filibuster was eliminated, as Professor Wilkerson proposes, the Senate minority’s acquiescence would no longer be necessary to pass legislation. Bipartisan cooperation would still be required during periods of divided government—the final six years of the Clinton and Obama Administrations, the final two years of the G.W. Bush and Trump Administrations—but when the same party controlled the White House and both chambers of Congress, the dominant party could enact its entire program on a purely partisan basis without any of the substantive or procedural limitations.

Moreover, although the formal effect of eliminating the legislative filibuster would be to disempower the Senate minority, doing so also would consign the House minority to an even more irrelevant position.  Presidents Clinton, Bush, Obama, Trump, and Biden routinely include both congressional minority leaders in their “four corners” meetings; they cannot afford to brush off the views of the House minority because of its potential to stir opposition among the Senate minority. House Minority Leader Pelosi negotiated several important legislative packages with Speaker Boehner, accommodating each party’s priorities. The nominal reason the Speaker turned to negotiate with her was the Freedom Caucus denying him the votes to pass time-sensitive legislation with only Republican votes. In fact, he might have tried harder to reach an intra-caucus accommodation had he not recognized that any proposal that the Freedom Caucus would support had no chance with Senate Democrats.

Eliminating the filibuster would, indeed, empower the majority party. That does not make its elimination an advance for democracy. Our constitutional scheme values democracy, but only up to a point. Partisan gerrymandering can, and often has, given majorities in the House of Representatives to a party with support from only a minority of the electorate. The Electoral College gave the presidency to candidates who lost the popular vote in both 2000 and 2016. And the Senate provides the same representation to California and Wyoming despite their wildly differing populations. Each of these departures from pure democratic representation is established in the name of stability.

The Filibuster Ensures Stability and Efficiency

The filibuster, too, is an important force for stability. It prevents the thin majorities that can arise in our evenly balanced politics from the shifts of just a few voters’ preferences. Even more importantly, it prevents a party that obtained majorities in Congress despite lacking majority support among the electorate from radically changing our nation’s laws to the frustration of most voters. This is particularly crucial in times of extreme polarization when the program of an electoral minority that seizes control of Congress and the presidency through our system’s anti-democratic features may radically depart from the wishes of the majority of voters.

For Professor Wilkerson’s strong privileging of democracy over stability to be persuasive, we would need to restructure the way we choose our legislators to ensure that congressional majorities reliably reflect majority voter sentiment. In fact, advocates and legislators on both ends of the political spectrum argue—in sharply differing ways—that our electoral system has severe flaws.

Despite the filibuster, and despite huge ideological differences, Congress has done remarkably well in crafting bipartisan legislation to fund the government, redesign government programs, and meet other broadly acknowledged needs. The current system is clearly sustainable. It has not produced sweeping responses to important social problems such as climate change, but without the filibuster Congress could just as easily move backward on environmental issues as it could move forward. And with many government initiatives requiring months or years of consistent effort to achieve—from creating subsidized child-care slots in effective programs to building aircraft carriers—a system in which slight shifts in voting leads to the wholesale dismantlement of the previous Congress’s initiative would be wasteful and inefficient. It also, ironically, would hinder partisan accountability, as voters are ill-equipped to assess whether an initiative’s failure to improve their lives results from the current governing party’s defective program design or the prior administration’s destruction of the necessary administrative infrastructure.

We need bipartisanship to craft laws that have broad support and that respond to public needs. We need the filibuster to give majority parties incentives to work with their minorities. More importantly, we need the filibuster to prevent each new congressional majority from putting the torch willy-nilly to the major accomplishments of its predecessors.

If you enjoyed this piece, you can read more of our Encouraging Bipartisanship series here

John Wilkerson min e1654458682355
John Wilkerson
Donald R. Matthews Professor of Political Science

John Wilkerson is Donald R. Matthews professor of political science at the University of Washington. Along with E. Scott Adler, John Wilkerson is the co-author of "Congress and the Politics of Problem Solving." His current research uses machine learning methods to study behind-the-scenes policy development in Congress.


David Super min e1655634435380
David Super
Carmack Waterhouse Professor of Law and Economics, Georgetown University Law Center

David A. Super is Carmack Waterhouse Professor of Law and Economics at the Georgetown University Law Center, where his specialties include administrative law, evidence, health law, legislation, property, and public welfare law. He has written extensively about the legislative process in scholarly journals, for the Balkinization blog, and in popular media outlets such as the New York Times, the Los Angeles Times, the Washington Post, The Hill, and Politico. He also has trained nonprofit organizations’ staff in congressional procedure. Prior to entering the legal academy, he served for several years as the general counsel for the Center on Budget and Policy Priorities and worked for Community Legal Services in Philadelphia. 


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