Hillarysworld

Ezra Klein had a provocative column in Sunday's Washington Post, arguing that it's time to eliminate or substantially weaken the filibuster in the United States Senate. He writes:

The modern Senate is a radically different institution than the Senate of the 1960s, and the dysfunction exhibited in its debate over health care -- the absence of bipartisanship, the use of the filibuster to obstruct progress rather than protect debate, the ability of any given senator to hold the bill hostage to his or her demands -- has convinced many, both inside and outside the chamber, that it needs to be fixed.

Klein cites a study from Barbara Sinclair showing that the filibuster is used much more frequently now - up from 8% of "major bills" to 70%. This is as sure a sign as any that reform is needed, that the two parties can't be allowed to succeed by using the politics of obstruction anymore.

Yet Klein's reasoning is imprecise. After all, the legislative process has not become "broken." It is largely the same process as it was decades ago. The real change has occurred within the two Senate parties. They are using the filibuster more aggressively in their quest for political success. This raises an important question that Klein leaves unaddressed: if the parties are more unrelentingly partisan now than in ages past, is it prudent to lower the barriers that prevent them from enacting sweeping policy changes?

On this question, I come down squarely in the negative. The increased use of the filibuster is not a consequence of Senate "dysfunction," but instead a desirable check upon it. Given this, it makes much more sense to leave the filibuster intact.

The following chart demonstrates that the two political parties have become substantially more polarized over the last 45 years. It uses the DW-Nominate methodology to track the ideological distribution of Democrats and Republicans in the Senate from the 89th Congress (1965-1967) to the 110th (2007-2009):

Three important trends are evident from this picture. First, the party extremes have grown farther apart. Second, there are now fewer genuine moderates in the United States Senate than at any point in the last half century. Third, there used to be a sizeable ideological overlap between the two parties in the Senate. It no longer exists. Put simply, the Senate parties have become ideologically polarized.

This helps explain the increasing use of the filibuster. As the parties drift apart ideologically, the majority party will more likely introduce legislation that the minority party can't accept, giving the latter a stronger incentive to block it via the filibuster. Using the filibuster is thus a rational response when one finds oneself in the smaller half of a polarized chamber, which is more likely to be the case today than 45 years ago.

This points to a highly beneficial purpose the filibuster can serve. Per Klein, it is indeed an obstructionist tool, but it is also a way to promote moderate policies, even as the parties have become more ideologically extreme. In other words, thanks to the filibuster, an ideologically extreme majority party cannot simply enact its policy preferences as it sees fit. Instead, it must either find common ground with some on the other side, or do nothing. In other words, the filibuster has an effect similar to that of a large body of water on the climate of the neighboring coast, keeping the temperature from getting too hot or too cold.

Think of it this way. When Democrats are in charge, they will endeavor to pull the policy needle to the left. To succeed, they will have to negotiate with the pivotal legislator. If the status quo is retained, that would be the 60th senator, who will sustain a filibuster if he is not satisfied. On the other hand, if the filibuster is eliminated, the Democrats will only have to appeal to the 50th senator, who will by definition be more liberal than the 60th. Policy outputs would thus shift leftward, perhaps dramatically so. The same goes for the GOP. When Republicans are in charge, they must find common ground with the 60th senator, which will result in much more moderate policies than what we'd see if the filibuster is eliminated. I would point to the 109th Congress. If George W. Bush had to appeal to Norm Coleman rather than Mary Landrieu, the Republicans would have gotten plenty more done, and their policy outputs would have been much more conservative.

Over time, this suggests that changes in control of the Senate will not yield big swings in policy output so long as the filibuster is allowed to remain largely as is. Liberal majorities will have to negotiate with a center-right senator, and conservative majorities will have to negotiate with a center-left senator. Eliminate it, and you'll see bigger swings in policy as control of the upper chamber changes hands.

We are thus faced with a choice. We can get rid of the filibuster to facilitate legislative policymaking, but we should brace ourselves for ideologically polarizing laws that will leave a third to a half of the country deeply unsatisfied. Democrats will enact very liberal policies; Republicans very conservative ones. On the other hand, keeping the filibuster in place will mean less gets done - as the two polarized parties have trouble finding common ground - but whatever policies are produced will be more moderate and less offensive to the losing faction.

I strongly favor moderate-if-infrequent policy changes. It is not ideal - the sundry compromises in the "moderate" Senate health care bill are highly objectionable to me, and of course the filibuster can be used for narrowly partisan purposes - but it is preferable to the alternative of ideologically polarized policy-making.

An institutionalized filibuster was not a provision that the Framers implemented when they created the government. Still, it has tended to crop up during highly polarized periods in American political history: the fight between Democrats and Whigs over the Bank of the United States, the ante-bellum political breakdown of the 1850s, the post-war fights over civil rights, and of course today. While the Framers did not make provisions for a filibuster, the procedure nevertheless reminds me of Madison's thinking in Federalist #10:

Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction...

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

Madison argues in this consequential essay that "the latent causes of faction are...sown in the nature of man." Thus, the only way to control its ill effects is by proper management within the government. Madison believed that a large republic characterized by a system of checks and balances could accomplish this task.

I would suggest that the increased use of the filibuster is a way to check two political parties that resemble factional cliques, neither of which broadly appeals to the whole country. Eliminating it would allow for more legislation to be passed into law, but I fear this legislation would have a factional element to it - and like Madison I believe that a well constructed government should "break and control" the "violence of faction."

That's an interesting phrase Madison uses - "violence of faction." It turned out to be quite prescient. After all, the Civil War was more of a sectional war or a factional war than anything else. Today, with the two parties so divided, it is not unreasonable to worry about the long-term effects of one side pulling the policy needle so far in one direction. Eliminating the filibuster might mean that the victorious party gets a lot more done, but how will the losers react over time?

I doubt very much that there would be another civil war! Still, "violence" doesn't necessarily imply war, or even physical confrontation. We could instead see ever more violent passions on the two ideological poles, as the losing side is increasingly outraged by the many "tyrannies" of the majority party. It's easy to take for granted the bonds that hold the national Union together, but that does not mean they are indestructible. Allowing one side or the other to enact root-and-branch changes via a bare majority could, over time, weaken them as the losers become more frustrated and angry.

[SNIP]

So long as the two parties are so far apart ideologically, I will support the filibuster, regardless of which side is in charge.

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