Idea: To fix the filibuster, make it harder to overcome

by Alan Cohen

Yesterday, I wrote about how political (and other) systems can be shaped by culture as well as the rules that govern them. Today, based on this, I am going to post a relatively radical idea about how to fix the gridlock in the US Senate. (I’ll assume you’re familiar with the info in the previous post on the filibuster and the functioning of the Senate.)

Most Senate-watchers suggest that the filibuster should be eliminated, since it has become just a tool for obstruction. Those that don’t are usually thinking in the short-term about aiding their party, which would be the current minority. I will suggest the opposite: strengthen the filibuster by increasing the number of votes needed to override one. In the short-term, this will produce more gridlock. In the long-term, it will restore a culture of collegiality and compromise.

The proposal: Significantly increase the number of votes needed to overcome a filibuster. 75 (or 3/4) seems about right… The number should be high enough to make sure that there is a strong incentive to develop a general consensus, but not so high that a very marginal group of contrarians can halt important legislation. In addition, however, the filibuster should be formalized, and there should be additional rules surrounding it, as follows: (1) Debate can be stopped and a vote called with a simple majority (51 votes). However, before the vote is taken, there is an opportunity to propose a filibuster. In order for a filibuster to start, at least 25 votes are required. (2) Once a filibuster starts, it must be actively maintained by continuous speaking (a real filibuster) or the vote will occur. (3) There should be moderately but not overwhelmingly strong incentives to avoid filibusters or limit their use. For example, congressional salaries could be reduced by 5% (for all members) every time a filibuster occurs. There could be a quota of filibusters (or hours of filibusters) in which any given senator can participate in during a year (perhaps 5). (4) If necessary, the plan can be phased in in the future so that it will be hard to predict its effects on either party’s immediate interests.

How and why it works: Currently, the filibuster serves as a means for the minority party to shut down the activity of the majority, without serving as a major tool to forge bipartisan compromises. The goal is always to peel off the support of one or two moderates from the opposing party, not to come up with solutions that involve real consensus. By increasing the number of votes needed to overcome a filibuster, you require that the legislation be broad and reflect a general consensus. If there is no consensus, nothing gets done.

In the short run, the minority party would use this to obstruct even more effectively, but the complete shutdown of the senate would soon be reported in the news as obstruction by the minority party, increasing pressure on them. A budget would need to be passed, and a compromise would eventually be reached. Because the more extreme Senators on either side could filibuster, this compromise would not likely reflect one party holding the budget hostage to its more extreme ideas. Much other legislation might be stalled in the first years, but eventually a culture of compromise would take over. Most votes would likely not be along party lines but rather excluding the most extreme members of each party.

This would work for the major pieces of legislation for which the filibuster would be used. Because the incentives or quotas–and the need to actually filibuster–would discourage the use of the filibuster willy-nilly, much of the basic work of congress could proceed unimpeded, and the minority party would be forced to choose its priorities. The tricky part about the rules is retaining enough of the filibuster to encourage compromise while at the same time limiting it enough that it could not serve as a tool of an extreme minority to completely shut down government.

For example, approval of judicial nominations is one area where compromise seems particularly important (look at how polarized and partisan appointments have become). Forcing a consensus in these cases could be particularly useful because it could force most federal judges to be from the center of the political spectrum, essentially eliminating highly politicized appointments on either side. However, minor judgeships might not be a priority for filibusters, meaning that highly politicized appointments could still occur there. One possible solution is to have different filibuster rules or quotas for judicial appointments (all can be filibustered), executive appointments (none can be filibustered), and legislation (a limited amount can be filibustered).

Caveats: The most important caveat here is that this is an untested system, and could produce unforeseen consequences. For example, the introduction of filibuster quotas could lead to clever legislative strategies in which the majority tries to draw out the minority filibusters on polarizing but inconsequential issues (Let’s fund counseling on how few long-term health consequences there are from abortion! Let’s offer a major corporate tax reduction for companies that require all employees to come to work armed!), so that they will all be used up and the majority can pass major legislation with a bare majority. Perhaps there are ways around this, but such risks need to be factored in. In all honesty, I am not saying I believe wholeheartedly in this proposal. But I do believe that consideration of how rules affect culture and culture affects rules should be critical in trying to rebuild government institutions that function in terms of policy, not just politics. This is one example of how we might begin that process.