Thursday’s events illustrated that a simple majority of senators can restrict filibustering whenever they choose. They don’t need a previous question motion, they don’t have to wait until the first day of a new Congress, they don’t need the blessing of the Senate parliamentarian. They just need a simple majority of votes to establish a new precedent in the Senate.
How can they do this? This forthcoming paper with Sergio Campos provides procedural background on today’s events. We sketch out several scenarios for simple majority reform-by-precedent. The Democratic majority used option #4: redefining the cloture process so a simple majority of those present and voting is sufficient to limit debate. As we note, this is an “especially bold” reinterpretation, since the key phrase in Senate Rule 22 – “three-fifths of the senators duly chosen and sworn” — is, well, math. It takes a lot of very frustrated senators to announce that the real meaning of this phrase is “a simple majority of those voting.”
It is worth noting that this sort of action is not unprecedented. As recounted here, there have been several previous (albeit more limited) reforms-by-precedent in the Senate since 1977. And as I explain here, the House of Representatives was once paralyzed by obstruction, leading to a major confrontation and reforms-by-precedent in 1890.
As several senators pointed out before and after today’s votes, the unsettling implication is that the Senate is a chamber in which a majority can reshape the rules whenever they wish. But I have long argued — as have Gregory Wawro and Eric Schickler – that the Senate has always been a chamber in which a majority can restrict obstruction. Today’s events simply made this fact more apparent to all. Now that we know that the ability to filibuster depends on the tacit consent of the majority, senators are much more responsible for their own obstruction and for the filibustering they tolerate.
First, like Jonathan Bernstein, I don’t expect that there will be a great deal of “fallout” from the nuclear option. Presumably, the Senate Republicans are already filibustering in every case where the benefits of obstruction outweigh the costs. To go any further would mean filibustering in cases when the costs exceed the benefits out of sheer spite. They could try to punish the majority by dragging out Senate action in small ways — refusing unanimous consent for time agreements, for example. It may help the Democrats that the holiday season is coming up. If the Democrats make clear that the Senate will remain in session until a specific agenda passes (say, a farm bill and some sort of FY 2014 appropriations) then any foot-dragging means that senators of both parties are missing their Thanksgiving/Hanukkah/Christmas/New Year’s events.
In the medium to long term, there are three scenarios:
A) The Senate becomes the House, but smaller. In this case, the majority soon eliminates the ability to obstruct legislation and SCOTUS nominations as well. Soon, the majority streamlines the cloture process to remove the time lags between filing and voting, between voting on cloture and final passage.
I do not think this is likely in the short run. Since the Republicans have a majority in the House, the Democrats do not gain a lot by eliminating the filibuster altogether. And the House illustrates the pitfalls of majority party rule: limited debate, heavily censored amendments, and agenda-setting power centralized in the majority party leadership.
B) Peace in our time. The Republicans, stunned to realize that Democrats actually mean it when they threaten to change the rules, curtail their obstruction to avoid provoking further reforms. The Senate becomes once more an incubator of sound, bipartisan legislation.
Sadly, also unlikely. Like Don Giovanni on the cusp of hell, even a radical revision of the Republicans’ expected payoffs is unlikely to change their behavior. Senate rules may change, but the calculus of Republican party politics remains the same, and confrontation is still rewarded over compromise.
C) More incremental carveouts. It is most likely that the majority continues to chip away at filibustering without abolishing it altogether. The Democrats may try, again, to adopt formal rules changes that simplify the cloture process or make it more difficult to obstruct. Or they may declare additional classes of legislation immune to obstruction, such as appropriations bills or debt-limit increases. This preserves the ability to obstruct “ordinary” policy bills while reducing the effect of obstruction on critical legislation.