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Why the Filibuster is Not A Supermajority

I was asked in comments to explain my statement that a filibuster is not a super-majority requirement, so I will do so.

A filibuster certainly can be equivalent to a supermajority requirement, but only if the Senate chooses to treat it that way. In the 1990s, especially when Bob Dole was majority leader, they did. The practice was to run a test vote early on in the consideration of a bill -- sometimes a vote on the motion to proceed to the bill, sometimes a vote on an amendment that was likely to have the same supporters or opponents as the bill itself -- and then pull anything that didn't get 60 votes. No one on either side wanted to waste their time on something that might get filibustered. They had fundraisers to get to! As a result, opponents were never asked to show the depth of their commitment to opposition, by speaking at length, staying up late, learning Senate procedure, skipping trips, enduring unflattering public scrutiny, etc.

But that's not the way the Senate worked in previous decades, and it's really a cheapening of an important process. If the Republicans are willing to force real filibusters (which means they have to skip the fundraisers and family time and stay awake themselves), the difference between a filibuster and a mere supermajority will be clear. And the distinction is legally very important. For more on this, see TheNextHurrah, a blog produced by several of the very best DailyKos veterans, such as "DemFromCT" and "DHinMI," which has been an invaluable source for indredibly detailed analysis on the Nuclear Option, mainly in a twelve part series signed "KagroX."

In the part I've linked to, KagroX deals with a memo sent by Bush I White House counsel C. Boyden Gray that cited various legal scholars, most of which he identifies as "liberal" or "Democratic activist" to suggest that judicial filibusters were unconstitutional. Most of Gray's citations were blatantly misleading -- no surprise -- but a particularly interesting one was to a paper by Georgetown law professor Susan Low Bloch (or, as Gray put it, "liberal Georgetown Law Professor Susan Low Bloch)" who had spoken at a conference in opposition to a House proposal to require a three-fifths majority to pass a tax increase. Bloch wrote a note protesting the use of her testimony by Gray and later by Senator John Cornyn, himself evidently a legal scholar, on the grounds that they had ignored the distinction between a filibuster and a supermajority:

It should be obvious that the time-honored use of a filibuster to allow Senators to express their views and to decide when to cut off debate and schedule a vote is not equivalent to a rule change requiring a supermajority... Indeed, it is not a rule change at all. Everyone agrees: Senate confirmation requires simply a majority. No one in the Senate or elsewhere disputes that. The question is the constitutionality of the ability of Senators to debate until they believe the matter has been thoroughly discussed and should be scheduled for a vote.

There is, in sum, a significant difference between a rule change that attempts to require a supermajority to "pass" a bill or "confirm" a nominee, when the Constitution clearly requires only a majority, and an internal rule of proceeding that says every Senator can speak on a matter unless and until a supermajority decides it has heard enough. The first tampers with the Constitution; the second is an internal rule of procedure

The full Bloch response is in the second comment to the post at TheNextHurrah. And, by the way, keep reading that blog.

Posted by Mark Schmitt on April 8, 2005 | Permalink

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Comments

Just look at historical practice. Some filibusters have been broken. Others have ended with the voluntary withdrawal of the nominee. Filibusters take time, which means that events continue to unfold.

Assume the Democrats began a filibuster today of Bush's remaining 10 nominees. The Republicans force them to continue it for a few days. The issue dominates the news, public opinion is heard, polls are taken. The public's reaction may well cause one side or the other to back down. And if not, the issue will still be high in the public mind, and someone may have to pay a political price in 2006.

Compare this to past practice, which involved blocking nominees by using tactics like anonymous holds and "blue-slipping." Most people have no idea that Clinton had over 60 nominees who never got an up-or-down vote, because of the silent use of these techniques. The filibuster is far, far superior, because it results in a determination of whether the minority party is supported by public opinion.

Posted by: Steve | Apr 8, 2005 3:04:33 PM

Mark--thanks for the compliments and plug, and thanks for directing people's attention to Gray's willful distortions.

Posted by: DHinMI | Apr 8, 2005 5:45:34 PM

I've argued that the filibuster is essentially a means of ensuring consensus, that it serves to ensure that there is a super-majority of the senate which either supports the bill or doesn't hate it. That fits in with the Founders' views of the Senate as an elected aristocracy, but I wonder how it fits with the 17th Amendment's switch to a more democratic Senate.

Posted by: Josh | Apr 8, 2005 6:49:12 PM

I used to go out of my to look for posts by the Next Hurrah team when I was reading Daily Kos more regularly.

If Democrats filibuster, the question is, can they perform well enough message-wise to break through the spin and turn it into a broad national 'win?' It will be interesting to see who chooses to do it.

Posted by: Crab Nebula | Apr 8, 2005 7:25:46 PM

'way', the word is 'way'. My brain, she don't always work.....

Posted by: Crab Nebula | Apr 8, 2005 7:27:29 PM

"But that's not the way the Senate worked in previous decades..."

Ugh. While this is quite true, the change in question came over 3 decades ago.

Since the rule was changed in the early 70's, forty Senators have been able to prevent a vote on any non-budget matter in front of the Senate without any parliamentary acrobatics.

In previous decades, it is true that parliamentary acrobatics were required, but even that didn't alter the fundamental equation at hand. I think you'd really have to go through some extreme semantics to decide that the filibuster rule since the early 70's has been anything but a super-majority requirement.

-----

The real question, of course, goes beyond semantics to whether it would be good or bad for the left to eliminate the filibuster on all legislation, if the Republican leadership is loony enough to agree to such a "compromise" in their efforts to appease their base over judges.

I'd invite you to consider this thought experiment:

Imagine a constitutional amendment were to be passed banning all non-budget legislation for the next 50 years. Which side would be happier with that - the right or the left? Which side would benefit from that - the right or the left?

I'd suggest the answer should be reasonably obvious.

One side wants to burn the government down, while the other side wants government to work. Making and maintaining a functional government requires tinkering with the federal code from time to time.

And however we choose to argue the semantics of the meaning of the filibuster rule, the practical effect is to require a super-majority to pass legislation. I'd suggest the identity of the side which benefits from making it more difficult to pass legislation should again be reasonably obvious.

The opportunity to kill the filibuster is a once in a lifetime opportunity. It won't present itself again when we are in the majority.

-----

And finally, I'll add an echo to the voices suggesting The Next Hurrah is definitely worth a look.

Posted by: Petey | Apr 8, 2005 10:00:40 PM

Petey--while I see where you're coming from regarding which side might hypothetically favor a "freeze" on all legislation, I think you're missing a really important point--the current right wing hates the status quo and wants to reverse things, which they can't really do, but they're also damn scared about any "advancement" of the welfare state. But they are also themselves constantly trying to tinker with the federal code, so the thought experiment, in my mind, doesn't have the obvious result I think you believe it does.

I see Mark has a Schattschneider book on his list; while admittedly he wrote before the current radical GOP had come to the fore, I think Schattschneider would argue that neither party is a clear "friend of business," that business interests shift between parties to use government as a means with which they seek to gain comparative advantage, through regulation and legislation, over their rivals within and between industrial sectors. So unless business reaches an unchanging status quo, there will always been a need for tinkering in the federal code, which is something that Grover Norquiest may not find all that important, but which plenty of other folks surely do.

Nonetheless, I do strongly agree with your final statement. ;-)

Posted by: DHinMI | Apr 8, 2005 10:52:37 PM

Petey, I don't think that's true. Before the rule change, 34 Senators could block action, now it requires 40. That's a higher bar, not a lower one. And the degree to which the Senate has forced would-be filibusterers to show their hands has certainly ebbed and flowed during the following decades. The biggest change is not in the rules, but simply in the culture of Washington. Senators used to hang around there. They didn't have anywhere to go. Read Caro on LBJ if you want a feel for that culture. Now there are a million external demands, and no one wants anything to do with a real filibuster.

I'm sure there are academic studies on this -- since it's easily quanitifiable -- and I'll look for them. As a rule of thumb, of course, anything that passes with more than 50 and less than 60 votes, other than reconciliations, proves the point that the filibuster is not the same as a supermajority.

Posted by: Mark Schmitt | Apr 9, 2005 10:45:46 AM

"And the degree to which the Senate has forced would-be filibusterers to show their hands has certainly ebbed and flowed during the following decades. The biggest change is not in the rules, but simply in the culture of Washington. Senators used to hang around there."

No doubt the bipartisan clubbiness of the Hill has disappeared for a wide variety of reasons, but...

Unless I've badly misread my history, the difference in the nature of the filibuster is directly tied to the early 70's rule change.

That change was two pronged. As you noted, it reduced the number needed for cloture from 2/3 to 3/5. But the other important change was that the Senate could proceed on to other business while the filibuster went on.

Previous to the early 70's rule change, other legislation could not be brought to the floor while attempts were made to find the votes for cloture. This meant that filibusters had the effect of shutting down the Senate until cloture was reached, or the legislation withdrawn.

After the early 70's rule change, no such impediments existed. Cloture became a pure super-majority requirement, and the filibuster no longer had any negative side effects on the other business of the Senate.

-----

"As a rule of thumb, of course, anything that passes with more than 50 and less than 60 votes, other than reconciliations, proves the point that the filibuster is not the same as a supermajority."

I'd disagree with that rule of thumb. Take the recent bankruptcy bill as an example. Several Senators voted differently on cloture than they did on the actual bill, for reasons of their preferred optics on the issue. But the cloture vote was the crucial one, everyone knew it, and that vote required 60.

-----

While all of this is interesting, as far as I'm concerned, it's a sideshow. The real issue I'd like you to re-examine is my somewhat impassioned contention that if a deal with Frist were possible to eliminate the filibuster on all legislation, it would be a very good deal for the left moving forward.

Posted by: Petey | Apr 9, 2005 12:53:02 PM

Mark--a historical and process question, and one that, if you don't already know the answer, you might keep in mind while you look for the research on filibusters: Along with the changes since the LBJ days you already mentioned, have the bills brought to the floor become more complex? Specifically, is it more common today than in the past to have multi-section and Christmas tree bills larded up with stuff that has little or nothing to do with the main/original intent of the legislation as introduced?

The reason I'm wondering is because if there are more multi-section bills, I think there might be fewer filibusters as a percentage of bills attempted to be brought to the floor. Suppose, for instance, that something with important implications for your home state gets tacked on to a bill that you oppose for political reasons--let's say it's a bill your allies in industry A oppose, but somebody tacked on a regulatory change favored by your allies in industry B, which is a major employer in your state. Maybe you know you have to vote no on the bill because of your ideological or political opposition to how the regulatory changes will effect industry A, but you would like to see the regulatory changes that would benefit industry B, and you're not sure they will pass in a stand-alone bill. You're conflicted, so you finesse the conflict by supporting industry A with a no vote on final passage, but you also help out industry B by not engaging in complete opposition and allowing them to get to final passage even though the bill as written has the support of fewer than 60 Senators.

If we're seeing more omnibus legislation, and my hypothesis is correct, that might help explain any increase in the percentage of bills passing with fewer than 60 votes.

Posted by: DHinMI | Apr 9, 2005 6:44:41 PM