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Saving Mr. Smith -- How to Fix the Filibuster
Jesse Richman, 5/29/2014

In Frank Capra's 1939 classic Mr. Smith Goes to Washington the filibuster is described as "democracy's finest show, the filibuster, the right to talk your head off, the American privilege of free speech in its most dramatic form."  

Claims that the filibuster is "Democracy in action." may seem odd on their face.  A central tenet of democracy is majority rule.  The filibuster can thwart majority rule. It protects minorities against majorities.  In the modern U.S. Senate, ending a filibuster requires that 60 Senators vote for cloture.  If only 59 Senators support a measure, there is nothing they can do.  The 41 against the measure win every time.  

There are reasons to doubt the desirability of such blocking.  The filibuster can be abused.  It can harm social welfare.  If the minority can use the filibuster as an across the board super-majority requirement (as has been done in recent sessions of Congress), then many policies that make a majority better off (and society as a whole better off) can be blocked on a whim by the minority.  

Late last year, the Senate enacted  one of the most significant changes in congressional rules in decades. Democrats proved the workability of the 'nuclear option' to amend Senate rules with a simple majority.  They used this option to restrict filibusters for most presidential nominations, an action that will sharply reduce the ability of minority-party Senators to gain leverage with the executive branch by blocking votes on nominations. 

Chuck DeFeo of the RNC seened to imply in a fundraising letter on May 29, 2014 that this nuclear option involved a violation of the constitution: 

Harry Reid has been on an unprecedented power trip—from rewriting the Constitution to fit his political needs, using the "nuclear option" to change the Senate rules, unilaterally pushing through President Obama's liberal appointees and judicial nominees, and circumventing the normal checks and balances system to ram through his radical agenda.

Reid has been expanding the powers of the Senate majority party and weakening the ability of the minority to block or influence appointments and legislative changes.  But let’s be clear about one thing.  Under the Constitution the Senate has the power to craft its own internal rules.  It is this power that Reid used to weaken the filibuster using the “nuclear option”, and this same power is the one the Senate used to create the filibuster in the first place.  This is NOT about the Constitution.  It is about whether the Senate ought to have super-majority requirements.   

Reid's reforms leave open the question of whether the Senate ought to reform the filibuster rule further -- whether or how filibusters ought to be permitted on legislation. It calls into question the very fabric of the modern Senate, a Senate in which action on most issues requires the support of a 60 vote supermajority, or exceedingly careful procedural manuvering to fit through procedural loopholes like budget reconciliation.

To understand what ought to be done with the filibuster, it is important to understand its advantages, and limits. In the context of democratic majority rule, there is a case for a limited supermajority requirement.

Consider the following two cases. 

Bill 1: A bill that will provide small and modest benefits to a majority of Senators, while imposing extremely high costs for a minority.  Victory by the majority would reduce overall welfare. 

Bill 2: A bill that will provide large and substantial benefits to a majority while imposing small and modest costs on minority.  Victory by the majority would increase overall welfare. 

A well designed filibuster can allow the minority to protect itself from Bill 1 without sacrificing the interests of the majority in the case of Bill 2. 

We do not currently have a well designed filibuster.  The current filibuster institution on legislation allows the minority to win in both cases.  Going "nuclear," as happened on appointments last fall, allows the majority to win in both cases.  Neither maximizes overall utility.

The solution is to go back to an earlier version of Senate cloture rules.  In Lyndon Johnson's Senate (and until the early 1970s) Senate rules for ending a filibuster by invoking 'cloture' created a super-majority requirement among senators present and voting.  This allowed the majority party to engage in a war of attrition with the minority.  The ever-present threat of a lost cloture vote forces minority members to be ever vigilant, potentially around-the-clock for fear of a surprise vote called by the majority. 

Under current rules the minority need not bear any costs to block legislation -- the majority must achieve 60 votes or the filibuster stands.  By bringing back the war of attrition, the filibuster could be rendered informative -- it could improve welfare by winnowing Bill 1 cases from Bill 2 cases.  When the minority cared much more about the policy in question, it would be able to block.  When the majority cared much more about the policy in question, it would prevail because the minority would eventually back out of the war of attrition. 

In Mr. Smith goes to Washington, Jefferson Smith's willingness to engage in an individual filibuster even in the face of broad opposition signaled the credibility of his case, and blocked Senatorial action Smith opposed.  By bringing back legislative rules that support filibuster wars of attrition, we can save the valid core of Capra's case for the filibuster from the tyrany by the minority it has become.

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