[See Note 5 for more details of recent developments on filibuster reform]
In 2021, two Senate Democrats appear to stand in the way of filibuster reform: Joe Manchin (D-WV) and Kirsten Sinema (D-AZ). Other Democrats certainly may have qualms about reform, but they keep their concerns out of public view and a few of them who had not been eager supporters of reform made very public endorsements of reform. Because the Senate had a 50-50 party division and it takes a majority to back an effort to impose a lower threshold for cloture, the opposition of Manchin and Sinema was sufficient to block reform.
A few months apart, Manchin and Sinema published op-ed pieces in the Washington Post to explain their views and publicly declare that they would not support filibuster reform. Both senators represent states that lean Republican so it is easy to speculate that they both want credit for their commitment to bipartisanship, which both emphasize in their op-eds. Whatever their personal reasons, they both make arguments that the nation’s interests are protected by the current text of Rule XXII, the Senate rule that requires a three-fifths constitutional majority for cloture.
I encourage you to read the Manchin and Sinema op-eds, but I can summarize their rather brief arguments.
Manchin (Washington Post, April 7, 2021)
The high cloture threshold protects the interests of small states.
The high cloture threshold prevents “drastic swings” in policy and government instability.
The high cloture threshold prevents “dysfunction and gridlock.”
The high cloture threshold prevents “partisan solutions” that cannot solve the nation’s problems.
Sinema (Washington Post, June 21, 2021)
The high cloture threshold “compels moderation.”
Bipartisan deals stand the test of time and heal the country’s divisions.
The high cloture threshold protects from “wild swings between opposing policy poles.”
The high cloture threshold forces negotiations toward better solutions.
The high cloture threshold protects important federal programs.
The high cloture threshold serves our democracy.
The Senate should fully debate reform in order that senators can “fully consider the concerns and consequences.”
In most respects, the two Democrats offer similar arguments. They state similar concerns about partisanship, moderation, policy stability, and imply that legislation passed with bipartisan support is better for the nation than legislation passed with little or no minority party support. Mansion, from West Virginia, brings in small-state interests that Sinema does not mention. Sinema emphasizes that a conservative majority would threaten federal programs that liberals support and suggests that her colleagues do not appreciate the consequences of reform as she does.
We should take these arguments seriously. At a minimum, both senators had months to sort their arguments after it became clear that their opposition to reform mattered. Moreover, I find nothing in their other public statements on the Senate floor or elsewhere that adds to the arguments made in their op-eds. The question is what to think of their arguments.
Let me first note the most important limitation of the Manchin and Sinema op-eds: They both fail to account for how rules are used in practice. Understanding the effect of congressional rules on outcomes depends on legislators’ objectives—their political motivations and policy preferences. Change motivations and preferences and the effect of a rule on the outcome can flip. I will return to this.
1. Does the supermajority threshold “compel” moderation and bipartisanship?
It depends. There are two considerations:
(a) Moderation and bipartisanship are not the same thing; their relationship depends on circumstances.
(b) Obstruction can be motivated by something other than obtaining a more moderate outcome.
I start with (a). A moderate outcome need not be bipartisan; a bipartisan outcome need not be moderate. These are determined by distribution of policy preferences among legislators, which includes the size, cohesiveness, and extremism of the two parties. If one becomes more extreme, for example, then compromises that split the differences between the two parties shift in its direction and it is more likely that negotiated outcomes no longer look moderate. This is what many Democrats and observers claim about congressional Republicans (see Note 1), but neither Manchin nor Sinema chose to account for this.
Now (b). The motivation for minority obstruction may be something other than to moderate the legislation that the majority would pass. There’s a longer term game at play. In many cases, the minority strategically treats any compromise as unacceptable, lives with the policy status quo for the time being, and hopes to control the Senate in the next Congress so that uncompromised policy, perhaps by using the reconciliation process, can be enacted. In fact, in recent Congresses, minority party Republicans have openly made majority party failure their top goal, perhaps preferring to win future elections than to pass acceptable legislation in the short term. In that case, policy moderation is not the outcome of maintaining and exploiting the 60-vote cloture threshold—even in the long run.
To see minority obstruction as a step to moderation ignores what has been happening for years. Plainly, if one party deems compromise unacceptable and prefers to take its chances in the next election and a limited agenda of reconciliation and nominations, it can subvert the Manchin-Sinema objective of moderate, bipartisan policy making. Most Democrats have concluded that that is the state of their Republican opposition.
2. Does the supermajority threshold generate more stable policy (and protect existing programs)?
Manchin and Sinema assert, but do not defend the argument, that policy stability is acquired by having a high standard for passing new legislation.
We should note, of course, that there are constitutional protections against wild swings in policy. A central feature of the Constitution is that new policy must be approved by the House, Senate, and president and can be reviewed by the courts. This is an inherently conservative structure, made more so by the different terms of office, means of selection, and constituencies of the House, Senate, president, and courts. Manchin and Sinema seem to be implying that the Constitution is inadequate and that American democracy needs the additional protection of supermajority cloture, a Senate invention.
It is surely the case that a Senate majority can pass some legislation with a simple majority that cannot be passed with a supermajority threshold, producing policy that is more difficult to change. Like others, I have produced lists of important measures that appeared to be killed only because of the Senate’s cloture threshold. Implicitly, Manchin and Sinema have to argue that it was good for the nation that most of those measures did not pass. That’s a hard argument to make.
But there’s another important point: Manchin and Sinema offer an excessively narrow view of the policy challenges the modern Congress confronts. For example, failure to pass legislation does not always keep existing policy—the status quo ante--in place. Some policies, such as appropriations, temporary debt limit extensions, and tax policies with expiration dates, generate highly undesirable changes in policy when new legislation is blocked in the Senate. This threat is real, has arisen more frequently in recent decades, and, if anything, generated far more partisanship than it suppressed. Moreover, even policies that keep funding or staffing levels the same over time can have undesirable outcomes if they are not adjusted for inflation or modified to meet unanticipated developments. The world does not stand still when the Senate does.
3. Does Rule XXII protect small states?
Probably not much.
The Constitution already protects small states. Indeed, the protection of representation for small states in the Senate is as well-protected as any feature in American governance. The Constitution, of course, provides two senators for every state and three electoral votes to even the smallest states. Moreover, the Constitution requires a two-thirds majority in each house to propose an amendment to the states, three-fourths of which must ratify the amendment. And, over the decades, the addition of states to the Union by law almost always added states with small populations, allowing the small-state advantage to grow over the decades.
Want a little irony? In 1995, Harry Reid (D-NV), the Democratic majority leader who used the nuclear option to kill filibusters on most president nominations in 2013, made the argument that the problem was the House, which is dominated by large-state delegations.[1] Manchin does not blame the House so it isn’t obvious what Manchin has in mind. Reid, however, reasoned that small-state senators protect their state interests by being able to put the breaks on the legislative process. A single senator, of course, can slow things down but not prevent a cloture motion from being adopted.
There is evidence that calls into question the Manchin (and old Reid) argument. Keep these tidbits in mind:
There is a small-state bias in Senate policy making, but there is no evidence that the filibuster is the source of it.[2] Moreover, filibusters and cloture votes that divide senators for reasons related to state size are exceedingly rare.
Small states are well protected by the representational advantage granted to small states by the Constitution. The smallest 26 states, with a majority of 52 Senate votes, have only 18 percent of the U.S. population. It is not obvious why the 22 smallest states, with 11 percent of the population, need a 60-vote threshold to protect their interests. (By the way, the four states in the gap are CT, OK, OR, and KY.)
In practice, senators from small states do not treat cloture votes any differently than other senators. Small-state senators vote on cloture motions and even cloture reform almost exactly as frequently as other senators and for the same mix of political reasons.[3]
A large majority of small-state Democrats in the Senate of the 117th Congress, all stronger liberals than Manchin, endorse filibuster reform. An important exception, Delaware’s Chris Coons, shifted his view even before his party won a technical majority in the 2020 election and indicated his “openness” to reform.[4]
Manchin claims a small-state worry about Rule XXII, but Sinema, from a state far above the median in population, does not mention this concern.
4. Is the supermajority threshold essential to American democracy?
Honestly, I think the argument that the future of American democracy rests on retaining Rule XXII is wild and careless. Nothing in the Constitution or the writings of the Framers support the view that the Senate was intended to have a supermajority threshold. Madison and Hamilton were expressly critical of supermajority thresholds for policy making (Federalist No. 22 and No. 58). The Constitution reserves supermajority thresholds for only a few specified matters.
Manchin and Sinema must argue that the Senate learned through experience that the democratic project of the U.S. is well served by allowing a minority of senators to block action on measures they disapprove. This entails weighing the costs and benefits for democracy of the current rule. Manchin and Sinema make a stab at this.
Weighing benefits of delay or inaction against the benefits of action is not easy. For example, a case can be made that the ability of southern states to block anti-slavery legislation delayed the time that they left the Union, but is at least debatable whether this was good or bad. On balance, I would argue with hesitation that the decades of delay in ending slavery and Jim Crow laws did serious harm to American democracy. Moreover, I cannot help but observe that leading senators—including Kentucky’s Henry Clay—favored the adoption of a limit on debate.
Not too surprisingly, bare-knuckle politics, not a consensus about the ideal Senate, produced Senate practice and eventually supermajority cloture in Rule XXII in 1917.
Sinema is correct in observing that the Senate in the current Congress has not had a general floor debate on filibuster reform. However, she is incorrect when she suggests that her colleagues are not aware of the relevant considerations. In recent decades, the filibuster practice has been broken for the consideration of presidential nominations and nearly every policy area that generates a party division has been affected by Senate inaction, including many issues on which sizable majorities of Americans favor action. Few senators—probably no senators--have not given considerable thought to and engaged in discussions about reform.
5. Does the filibuster really do any harm?
It is interesting that Manchin and Sinema do not make a traditional argument about supermajority cloture, at least not squarely. It was once argued that a truly committed majority backed by popular opinion can eventually overcome an obstructionist minority. That is, the filibuster practice does little harm and much good. Bills that do not make it should be killed; deserving bills make it eventually. In 1949, three southern senators made the argument that “proponents of change failed to present one single example of any real injury to the American people caused by the delay on legislation due to extended debate.” They went on to argue that the country was better off when several civil rights bills designed to address racial discrimination and worse (the elections bill of 1890, the antilynching bills of the early 20th century, anti-poll tax bills, and others) were killed by filibuster. The thesis was extended by Senator Robert Byrd and others in the following decades. Byrd, for example, insisted that the filibuster “never has been and never will be fatal to the overall public good.”[5]
Manchin and Sinema wisely do not make this plainly inaccurate argument. Instead, they sidestep the fact that important legislation has been killed by filibuster and instead say the legislation would be better if it was negotiated to be more moderate. They do not address the real and experienced possibility that important legislation is killed without a moderate substitute. They merely imply that we are better off with no legislation than legislation passed by a simple majority. Lacking any evidence to support the argument, I’m not persuaded.
5. Let me ask a final question: Has the 60-vote threshold spurred bipartisan compromise and moderate outcomes in recent decades?
Not much. Senators of both parties must be willing to compromise, but compromise has become an unacceptable outcome for at least one of the two parties with greater frequency in recent decades.
In early 2021, for example, some bipartisan legislation was enacted, but nearly all of it was mid-range in importance to the public and legislators. Whenever there was a constituency for obstruction, we found obstruction. There was little bipartisan legislation from discussions about gun regulations, voting rights, pay equity, and other many other issues. On infrastructure, a handful of Democrats and Republicans agreed in June 2021 to $550 billion in new spending, but the president and Senate Democrats intended to take up most of the rest of the president’s $4 trillion package as a separate reconciliation bill that requires only a majority. The most important measures of the last two decades—tax policy, House-Senate differences on Obamacare, the 2021 COVID-19 relief bill—were adopted through the reconciliation process.
The inescapable truth is that there is that the political imperatives of the two parties diverge on many, if not most, of the important issues. Deep partisan polarization on the issues and powerful partisan motivations that have altered the legislative strategies of senators, transforming the 60-vote threshold as an incentive for compromise into a weapon of obstruction. Using that weapon has not encouraged future compromise. Rather, the repeated use of the weapon has deepened partisan distrust and reduced incentives to try to find compromise.
[1]Congressional Record, January 5, 1995, S434-5.
[2] Frances E. Lee and Bruce I. Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation (Chicago, 1999).
[3] Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Brookings, 1997), 99, 119-124.
[4] Marianne Levine, “The Biden Whisperer in the Senate,” Politico, June 23, 2020 [https://www.politico.com/news/2020/06/23/chris-coons-biden-senate-334270].
[5] Both quotations from Binder and Smith, op.cit., 127-8.