an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Before 1917, there was no way to end a Senate filibuster. In that year, the Senate adopted its first “cloture rule,” which enabled a two-thirds majority to end debate. In 1975, that rule was modified to reduced the necessary majority to three-fifths (60%), which is the current practice. But this raises a fascinating question that sheds a great deal of perspective on the modern filibuster: for all the years before 1917, how did the Senate manage to end debate and vote on the merits of legislation? Was the Senate paralyzed? Did intense minorities manage to block a great deal of legislation? How did the Senate’s tradition of “unlimited debate” – unique, as far as I know, among parliamentary bodies in the world – function for most of American history?
The answer lies at the intersection of norms and formal rules that characterize the operation of all representative institutions, such as the Senate. As it turns out, the Senate actually functioned internally as a majoritarian institution throughout its history (the design of the Senate itself, of course, is not majoritarian, given its state-based representational structure). Rules to end filibusters were not needed before 1917 because the majority was able to control effectively the Senate legislative process. Thus, even narrow majorities were able to enact legislation, including controversial legislation. Intense minorities could, of course, filibuster; the effect of these filibusters was to delay legislation. But if the majority was committed to passing the legislation at issue, the bills generally passed. “[L]awmaking in the pre-cloture Senate was generally majoritarian when it came to significant legislation.” So argues the most significant modern book on the subject, Gregory Wawro’s and Eric Schickler’s book, Filibuster: Obstruction and Lawmaking in the U.S. Senate at 19 (2006), from which the information in this post is drawn.
Many mechanisms contributed to enabling the Senate to function as a majoritarian institution, but among the most important was the shadow of the threat, and the understanding, that the majority would re-write the rules to eliminate minority rights if the minority actually obstructed enactment of major legislation. Senators appreciated value in filibustering; that practice revealed important information about how strongly minorities felt about particular legislation or particular provisions. But if the majority had intense preferences for the legislation even in the face of these opposing signals, the majority was understood to have the right to enact its policies – and it was recognized that the majority, if necessary, would enforce that right by changing the Senate’s rules and practices. Faced with this reality, minorities would accede once they had made their point, and important legislation would often be enacted with little more than majority support. In other words, filibusters were means by which minorities tested the strength and intensity of the majority’s commitment; but if the majority was committed, legislation passed. Indeed the coalitions behind major legislation were typically smaller than what became required after 1917 – and that are required today – to approve Senate bills.
Three factors contributed to this underlying dynamic. First, the Senate had a much smaller workload; as a result, a bill’s supporters could afford to keep obstructed bills on the floor for longer periods. There was less opportunity cost to doing so and waiting out a filibuster. Second, it was easier in the past than today for Senate majorities to change the rules of the Senate than it is today; since the practices of the Senate were based less on written rules and more on informal understandings, a simple majority vote could more easily change those practices. For example, to change a formal rule of the Senate – which includes the rules about how to end filibusters, now that those are codified as formal rules of the Senate -- requires, under the Senate’s rules, a two-third vote to end debate on the rule change (p.282). Of course, a majority could find ways to overthrow this whole structure by majority vote – but in terms of public perception, it might be far more costly for a majority to be seen as engaging in the “revolutionary” act of ignoring or overriding the formal rules than for the majority simply to change something that had merely been part of the informal practices of the Senate. Third, the relatively small size of the Senate throughout the 19th century sustained shared understanding of the essential dynamic that kept the Senate majoritarian: minorities gave way to determined majorities to avoid having minority rights wiped out more sweepingly. Wawro and Schickler offer much empirical analysis to support their conclusion that the Senate in fact functioned as a majoritarian body before the 20th century.
So if the Senate operated as a majoritarian body for most of American history, why did the Senate decide in 1917 to adopt a rule to end debate, the cloture rule? Wawro and Schickler argue that with the expansion of national government activities by this time, the legislative workload had expanded greatly – thus, filibusters became much more effective because the majority could not longer afford as easily to pay the costs of waiting out filibusters. In addition, they point to the dramatic expansion of the size of the Senate: in the 20 years starting in 1889, the Senate expanded by 30%. In their view, this much larger Senate could no longer sustain informal understandings about the appropriate limits on obstructionism. Hence, the 1917 cloture rule. Paradoxically, the creation of the first formal limit on filibustering signaled how much more common and effective filibustering had started to become – and would continue to become.
I will leave it to others to pursue implications of this history for today’s emerging debates about the filibuster. But this history is, I believe largely unknown and counterintuitive, and as debates over the filibuster heat up, as they inevitably will in our era of highly polarized political parties with virtually no cross-party line voting in the Congress, more people should have access to the deeper historical perspective provided by Wawro’s and Schickler’s important book. Posted
by Rick Pildes [link]