Wednesday, October 28, 2020

Cloture Reform in the Senate and the Evolution of Norms

Gerard N. Magliocca

An assumption underlying many of the proposals for action in the next Congress is that the Senate will either abolish or significantly modify the filibuster. While I think that changing the filibuster is a good idea, I doubt that this will actually happen. Even if Democrats win control of the Senate, that does not mean that there will be a majority in favor of cloture reform. 

There is also a dynamic aspect to the prospects for cloture reform. Mitch McConnell is a smart guy. He will understand that the surest way to convince a majority to end the filibuster would be to use that tactic frequently. Thus, he will probably refrain from doing so except on legislation that is especially dicey for Democrats and force those issues to be the ones where Democrats must reform cloture. As a result, more legislation may get enacted because sixty votes will not always be required, but this will not include things like repealing the ratification deadline for the ERA, making the District of Columbia a state, or other stuff on the fantasy list. On those measures, getting rid of the filibuster and passing a bill will be terribly hard.

The irony is that we may therefore see a restoration of a norm of filibuster restraint. Not because of some gentlemanly agreement about fair play, but because the balance of political forces will create a new reality. A norms of restraint can be an unwritten rule of the game shared by the players for philosophical reasons. Or such a norm can be a rational response to some greater threat that looms if restraint is not exercised.

The same thought, of course, can apply to restraint in the exercise of judicial review. A judge could have a jurisprudential commitment to that idea. Or she can adopt that approach out of concern about the political ramifications of not exercising restraint. There are many examples where the Justices (or at least enough of them) decided to back down rather than risk the wrath of Congress even though those Justices lacked a deferential disposition. They were simply ceding ground for institutional self-preservation. 

Finally, these two tactical considerations (from Senate Republicans and from the Supreme Court) will be mutually reinforcing in the direction of restraint. Partisan anger directed at the Court puts the filibuster at greater risk. And partisan anger directed at Senate Republicans makes Supreme Court reform more likely. Both Senate Republicans and the Court will seek to avoid those outcomes by doing less in the even that President Trump is defeated.


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