The Senate without the filibuster

I'm sympathetic to the case that Ezra Klein and Matthew Yglesias (among others) have been making against the institutionalization of the filibuster in the Senate, but the debate has often felt highly abstract. Other than a brief spate of posts on whether the filibuster helped block President Bush's Social Security legislation in 2005, advocates of reform have rarely grappled with how legislative outcomes might change in a filibuster-free Senate.

To make things more tangible, I've created the following table listing the pivotal voters for proposals moving policy toward the president under majority rule and the filibuster*:

Congress	50th vote	60th vote
107 ('01-'02)	Lincoln Chafee (R-RI)	Tim Johnson (D-SD)
108 ('03-'04)	Susan Collins (R-ME)	Tom Carper (D-DE)
109 ('05-'06)	Mike DeWine (R-OH)	Mary Landrieu (D-LA)
110 ('07-'08)	Evan Bayh (D-IN)	Claire McCaskill (D-MO)
111 ('09-)	Kay Hagan (D-NC)	Ben Nelson (D-NE)

Looking at these names, it's clear that a switch to majority rule would have had a substantively important effect on the ability of the president and his party to enact legislation (with the possible exception of the 110th Congress in which the Democratic House was the key check on President Bush). Under the gridlock zone model of Congress, the filibuter pivot is the key constraint on the president's legislative agenda (unless the median voter in the House is further away from the president).

To illustrate the point, I constructed a table of key votes selected by Americans for Democratic Action that attracted majority support but failed to reach the 60-vote threshold for cloture:

Year	Majority vote, no cloture
2002	Permanent estate tax repeal
2003	Estrada and Pickering judicial nominations
2004	Medical malpractice damage limits
2005	Patriot Act reauthorization
2006	Estate tax cut (attached to minimum wage increase)
2007	Iraq withdrawal deadline
2008	Reid stimulus proposal

In addition, many other policies would likely have passed the Senate in substantially different form (i.e. more conservative in 2001-2006, more liberal in 2007-2009).

In the end, the institutionalized filibuster adds yet another veto point to a system that already has too many, which weakens the democratic responsiveness of American government. But there's a very real tradeoff -- the price of responsiveness is responsiveness to ideas you don't like when your party is out of power. There's no getting around that fact.

* Rankings drawn from the Lewis-Poole Optimal Classification scores for the 107th-111th Senate. I assume the proposal in question would move the status quo toward the president, so the pivotal voter under majority rule would be the 50th most conservative (under Bush) or most liberal (under Obama) since the vice president would break the tie in favor of the president. Similarly, the filibuster pivots are the 41st most liberal (under Bush) or 41st most conservative (under Obama). I adjusted the 111th Senate rankings to account for the replacement of Ted Kennedy with Paul Kirk (who I assume is more liberal than Hagan and Nelson) but otherwise didn't account for special elections and appointments.

Update 12/9 4:25 PM: Matthew Yglesias argues that "the three progressive initiatives that were blocked by the filibuster [in the table above]—higher minimum wage, Iraq withdrawal deadline, and timely economic stimulus—are considerably more significant than the conservative initiatives that were blocked."

That may be true, but two other factors are worth considering. First, as I noted above, the filibuster prevented more extreme versions of major conservative proposals such as the 2001 and 2003 tax cuts (correction: passed under reconciliation). Second, and perhaps more importantly, there are presumably a number of other bills in 2001-2006 that might have attracted fifty votes but were never brought to the floor because they couldn't reach the threshold for cloture. If it's clear that a bill can't pass, it's likely not to be considered. Conversely, the list above is skewed toward nominees (who can't be amended to mollify the filibuster pivot) and high-salience issues (on which senators are more likely to want a recorded vote even if it fails).

Comments

[David]

Yglesias's phrase "all this piling-on of veto points upon veto points" makes it sound as if legislation can hardly be passed. He seems to imply that there aren't enough laws. I disagree.

Every year tens of thousands of pages of new legislation are enacted. In addition, thousands of pages of new regulations are adopted. These also have the force of law. Also, there are thousands and thousands of pages of court decisions which interpret these laws and regulations.

We're obligated to follow millions of pages of laws, regulations, and court decisions, although it's obviously impossible to read them all. Congress doesn't even read the laws they themselves pass.

Given the enormous and rapidly growing number of laws, I don't think there are too many impediments to increasing them. On the contrary, I think we ought to work at reducing and streamlining our legal structure.

[Rob]

As I pointed out some months back, the current filibuster fiasco is an unintended consequence of well-intentioned Senate filibuster "reform" more than three decades ago. Would-be reformers never seem to understand the iron law of unintended consequences. If you love the way the filibuster reform worked out, wait till you see what happens to health care.

[Rob]

Concerning Brendan's 4:25 PM update, Brendan appears to accept Yglesias's premise that the measure of whether a change in the filibuster procedure is advisable is whether the result will favor "progressive initiatives." That's the kind of result-oriented thinking that political scientists would generally deny. It's somehow refreshing to see it embraced so openly.

[Jonathan Bernstein]

A nitpick: you should use the 51st Senator in the 110th Congress (VP voting the other way).

Substantive point: Don't concede on the 2001 and 2003 tax cuts; the only reason (AFAIK) that anyone would choose to use reconciliation is to avoid the filibuster, at least on the Senate side.

For a few other comments, see my post at:
http://plainblogaboutpolitics.blogspot.com/2009/12/without-filibuster.html

[scarpy]

I don't think Claire McCaskill was the 60th vote in the 110th Senate. Or if she was, Evan Bayh must have been 65 or something.

[Ben]

the undemocratic impact of the filibuster rule seems relatively trivial given that it takes place in the context of a grossly undemocratic representative body in which the citizens of Wyoming have 69 times as much representation as the citizens of California.

[bnyhan]

Scarpy - she was estimated as the 60th vote for a proposal to move policy in a conservative direction. I've edited the post to try to make this more clear.

[Jonathan Bernstein]

Oh, never mind on the nitpick -- you mean 50th for the president. Oops.