President Barack Obama met with Ezra Klein of Vox to discuss political problems at home and abroad, including polarization and Congress. To make Congress more efficient, he argued:
Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate. Because I think that does, in an era in which the parties are more polarized, it almost ensures greater gridlock and less clarity in terms of the positions of the parties. There’s nothing in the Constitution that requires it. The framers were pretty good about designing a House, a Senate, two years versus six-year terms, every state getting two senators. There were a whole bunch of things in there to assure that a majority didn’t just run rampant. The filibuster in this modern age probably just torques it too far in the direction of a majority party not being able to govern effectively and move forward its platform. And I think that’s an area where we can make some improvement.
Eliminating the “routine use of the filibuster” would make the Senate more efficient, but that is no guarantee that it would make the government as a whole more efficient.
As much as the filibuster can be a nuisance for the Senate majority, it promotes, or at least potentially promotes, compromises. Former Senate Parliamentarian Robert Dove and former Democratic Senate staffer Richard Arenberg argue this point eloquently in their book Defending the Filibuster: The Soul of the Senate. It is well worth a read by anyone who has any interest in the filibuster controversies.
The filibuster promotes compromise by requiring the majority party to reach out and convince a small handful of Senators from the minority party to support a bill. Typically, the majority has to make some concessions to get Senators from the other party to join them. The argument can be made that this is exactly what the Senate ought to do. The Founders saw the Senate as a countervailing balance to the majoritarian House in a system of checks and balances – with the House promoting the will of the majority and the Senate guarding the rights of the political minority.
With a compromise-inducing filibuster in place, anytime the House or White House or both are controlled by the party that opposes the Senate majority, it should, in theory, be easier for the government to enact laws. For instance, today, since the Senate Democrats can delay legislation, for anything to get to the President’s desk, Republicans will have to bring the bill leftward a bit. Once it gets to Pennsylvania Avenue, it should be far more palatable to the President than it would be if the Senate had no filibuster. Roughly the same dynamic should play out when it comes to House-Senate relations. If the House and Senate are controlled by different parties, the Senate minority can help moderate a bill before the two parties hash things out in a conference committee or by ping-ponging a bill across the Capitol. When the government is divided somehow, there is no getting around making process-slowing compromises, and the filibuster is one way to do it.
To go even further out on a limb, even under united government (where one party controls both Chambers of Congress and the White House), it’s questionable that it would increase productivity in the long run. Supposing the filibuster were eliminated, and legislation—big, country-changing legislation—were passed, it’s likely the resultant bill would be more liberal or more conservative than if the tactic were in place. In the past couple decades at least, Americans have been rather skeptical of big bills, and backlash has not been pleasant for the party in control. Obamacare is a prime example. The Democrats had a filibuster-proof majority of sixty votes when it passed in the Senate, without the support of a single Republican Senator. Later when Senator Edward M. Kennedy died and was replaced by Republican Scott Brown, the Democrats resorted to procedural gymnastics to win final passage of a compromise with the Democrat majority in the House. Small wonder that the issue continues to divide the Congress and the nation.
If the Senate eliminated the “routine use” of the filibuster, as the President suggests, citizens can expect more ambitious bills like Obamacare, and all the acrimony to go along with it. In effect, the American government would move towards a more parliamentary system, which allows a new government to sweep into office and enact their party platform without the cooperation of the political minority. On the other hand, our systems of check and balances and separate branches of government were designed to make change without consensus very difficult. No one President, political party or cause gets everything they want. Compromise is the oil that allows the gears of the American government to function. In periods when compromise is politically difficult, like the present, it is nearly impossible to get major legislation passed. True, our system is not efficient—but as techies say, it’s a feature, not a bug.
It’s understandable that President Obama would target the filibuster; so many people do. However, the filibuster is not the cause of congressional dysfunction; the filibuster is only an instrument in the hands of Senators, some who use it for legitimate purposes and others who don’t. Thus focusing on the filibuster is too easy an answer for Congress’ inertia. A more difficult, but more effective solution, is for Congress to adhere to regular order and, when necessary, come to mutually agreeable compromises.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.