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Vikram David Amar

Constitutional Musings From California on the Filibuster


Friday, February 12, 2010

In this column, I offer a few observations on the debate over the Republicans' increased use of the filibuster and related devices in the United States Senate, from the vantage point of a constitutional law professor who has witnessed government dysfunction up close here in California over the past decade.

The First Point: Supermajority Rules Can Too Easily Paralyze Legislatures Modernly

Observation number one is that supermajority rules -- like the Senate's requirement that 60 of the 100 Senators vote to end a filibuster, and California's requirement of a 2/3 vote in both chambers of the legislature to pass a budget and to raise taxes -- can be a recipe for government paralysis when there is no significant cohort of moderate Democrats and Republicans in the legislative body in question.

In California, we have seen the moderates of both parties in both houses all but disappear, with the result being that there is simply no ground on which to forge the bargains, compromises and consensuses that supermajority requirements are, in theory, supposed to generate. As a result, for the better part of a decade, California has -- as analysts across the political spectrum seem to acknowledge -- failed to attack most of its systematic fiscal and policy problems. Instead, we have tended to limp from year to year with successive 12-month spending, taxation and regulatory plans that are full of band-aids, gimmicks, and -- more than anything else -- procrastination.

Some might argue that the gap in the middle of the spectrum between the party poles in California is a function of factors that are unique to California. To be sure, the self-interested districting plan that California legislators enacted after the 2000 census to protect incumbents has made almost every legislative district in both houses a safe one for either the Republican or Democratic party, such that party extremists (who tend to fare well in party primaries) never have to move to the middle to win the general election. And California does have an unusual demographic mix, in which the aging white component is increasingly reluctant to fund public services, a larger and larger portion of which are consumed by younger families of color.

But while the forces operating on the national scene might be different than those at work in California, the result on the federal level seems to be similar to what California has experienced: In both the U.S. House of Representatives and the U.S. Senate, there seem to be far fewer moderates -- of both parties -- than there were a generation ago.

One speaker at a recent conference of the Federalist Society -- a group of largely conservative lawyers and judges -- that I happened to attend observed, based on research he had done in writing retrospectives on the Reagan presidency, that in the 1980s, there were almost 20 Republicans in the Senate who were viewed in the same moderate political light as the only two Senate Republicans who are generally considered moderate today: the two women Senators from Maine. If the lack of a middle group forecloses the possibility of middle ground (as it has in the Golden State), then look for California to be a trend-setter for the country yet again, with governmental paralysis or mere limping along becoming the order of the day on the federal level, too.

The Second Point: The Current Filibuster Controversy Recalls a Similar Controversy of the Recent Past

Observation number two is that the recent angst over the filibuster is déjà vu all over again, kind of. It was less than seven years ago, in the middle of 2003, when a Republican Senate majority, fed up with the Democrats' invocation of supermajoritarian cloture rules, threatened repeatedly to "blow up" the filibuster by eliminating or revising it. (That approach was known at the time variously, depending on whether one supported or opposed the Republicans, as the "constitutional option," or the "nuclear option.")

Does the 2003 episode show simply that both parties are equally guilty of filibuster abuse when they are a minority, and equally guilty of hypocrisy when they resist filibuster reform? Perhaps not.

For one thing, the filibuster (along with related countermajoritarian procedural machinations in the Senate) is being invoked by the Republicans at a truly unprecedented rate, perhaps as much as 10 times more frequently than 30 years ago, and many times more frequently than a decade ago.

For another, when Democrats used the filibuster seven years ago, they were a minority in the Senate, but they (or at least their party) could claim to represent a majority (or at least a plurality) of Americans voting for U.S. Senators. For that reason, Democrats could argue (in a way that Republicans today cannot) that they were using the filibuster to overcome the undemocratic nature of the Senate itself, which (because of the deal that needed to be cut to get small states to approve the Constitution) is often controlled by the party that received fewer votes cast for Senators nationwide.

Granted, the Senate's anti-majoritarian structure is water under the constitutional bridge, but the fact that the makeup of the Senate (like that of the electoral college) is somewhat anachronistic, whereas the appeal to majority rule is more enduring, might make the Republicans' current behavior all the more problematic.

The Third Point: Democrats Can Change the Cloture Rule If They So Choose

Observation number three is that the Democrats in the Senate could, if they wanted, do what the Republicans threatened to do last decade, and eliminate or trim back the cloture requirement of 60 votes. Many analysts ask: If you can't muster 60 Senators to overcome a filibuster, then how can you get the 67 votes necessary to change Senate rules? The answer is: The 67-vote requirement to change Senate rules is itself embodied in a Senate Rule that could be changed by a simple majority.

Any other result would permit a bare majority of an earlier Senate to entrench its own decisions and extend its own lawmaking power well after it had been booted from office, in violation of deep constitutional and American values. Although a court would likely never rule on the question, an effort by a majority of Senators to repeal the filibuster would be both legally valid and democratically acceptable. (Readers who are interested in exactly how a simple current Senate majority could, if it wanted, eliminate the filibuster in whole or in part, can refer to a column I penned in 2003, when I wrote that the Republican majority had that power.)

One reason that neither party will trim back the filibuster any time soon, however, is that today's majority might be tomorrow's minority, and the Democrats today are mindful of that reality (as the Republicans were in 2003). But that is only part of the explanation. Individual Senators -- both in the majority and minority parties -- are reluctant to tinker with the Senatorial system, of personal privileges and procedural courtesies, of which the filibuster is but a part, because that system gives each Senator great power to pursue pet projects and extract earmarks for their home states. Blowing up the filibuster might also mean blowing up all the unjustified and extravagant personal perks that make being a Senator so enjoyable.

The Fourth Point: Senator Harkin's Proposals on the Filibuster (Which Resemble some Proposed Jury Reforms) Deserve Serious Debate

Observation number four is that is if the filibuster is intended to promote discussion and deliberation, rather than to give a minority an absolute veto over policy action, then reforms along the lines suggested by Democratic Senator Tom Harkin from Iowa, which were advanced both years ago and again last month, deserve meaningful consideration.

Senator Harkin suggests that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated. Thus, for example, a cloture sought early in deliberations over a bill or other measure might require 60 votes to pass, whereas the requirement for cloture on a measure after the Senate is already days into the debate, might be re-set at 57 votes. Days later still, the requirement could be lowered to 54, and so forth.

In that way, a bare majority could not circumvent discussion and deliberation at the outset, but neither could a recalcitrant minority hold up majoritarian action indefinitely. This model is similar to that proposed by some persons who have been involved in reforming juries, and who would like to move away from the unanimity requirement for petit juries (and the absolute veto that such a unanimity rule gives to every holdout juror), but who also would like to encourage meaningful discussion within the jury before a criminal defendant is convicted.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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