FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE

Vol. 16 No. 6 (June, 2006) pp.488-491

FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE, by Gregory J. Wawro and Eric Schickler. Princeton: Princeton University Press, 2006. 326pp. Cloth $29.95/£18.95. ISBN: 0-691-12509-0.

Reviewed by Frances E. Lee, Department of Government and Politics, University of Maryland, flee [at] gvpt.umd.edu.

Scholars and journalists today often speak of “the 60 vote Senate,” a reference to the three-fifths majority necessary to cut off debate and force a measure to a vote. Conventional wisdom holds that the supermajority necessary to achieve cloture effectively means that successful legislation must win support from at least 60 senators. If this is true, Gregory Wawro and Eric Schicker ask, how did the 19th century Senate legislate at all? Prior to the adoption of the cloture rule in 1917 there was no procedural mechanism available to end debate and bring measures to a vote. If the cloture rule explains why nearly all major laws adopted by the contemporary Senate pass by margins of at least 3/5 (p.27), then it stands to reason that universal coalitions would have been required in an institution without a rule for ending debate. The 19th century Senate nevertheless dealt with highly contentious issues; majorities were able to legislate despite significant opposition; and the Senate as an institution “functioned well enough to be a major player in one of the most successful and prosperous democratic nations the world has known” (p.6).

Wawro and Schickler thus look to history to gain a better understanding of how institutional rules and procedures affect legislative policymaking. By extending their analysis of Senate obstruction back in time, they allow rules and precedents to vary and thereby gain better analytical traction on their puzzle. They investigate the topic with an impressive array of quantitative and qualitative evidence. They conduct statistical analyses of coalition size over time, the passage of appropriations bills, and obstruction on slavery in the antebellum Senate. They provide in-depth case studies, with extensive quotation from the Congressional Record and other primary sources. They examine in detail the role minority obstruction played in the Bank Bill of 1841, the Federal Elections Bill of 1890-91, and the politics of the tariff throughout the 19th century. In the process, they shed new light on Senate history and on the recent controversy over Senate confirmation of judicial nominees.

Wawro and Schickler come to a counterintuitive conclusion: majorities were paradoxically better able to rule in the 19th century Senate than in the contemporary Senate, despite the lack of a cloture mechanism then and the existence of one now. They argue that narrow majorities in the 19th century could threaten to enact precedents that would restrict obstruction, and these threats led legislative minorities to exercise self-restraint. Wawro and Schickler contend that these threats were credible in part because 19th century senators could look to the House of Representatives for an example of how floor majorities could use procedural [*489] rulings to limit obstruction (pp.62-65). They argue that this strategy was also a viable option in the Senate. Indeed, the “nuclear option” contemplated by the Republican majority in the 2004-2005 deadlock over judicial nominees would have operated according to this basic logic: a senator would make a point of order that filibusters of judicial nominees were unconstitutional; the Vice President as the presiding officer would uphold that point of order; a member of the majority party would then offer a nondebatable motion to table the appeal of the presiding officer’s ruling; and then a majority vote would sustain the tabling of the appeal. Thus a precedent ending filibusters of judicial nominees could be established by simple majority.

Under this logic, Wawro and Schickler argue that Senate rules are subject to a “remote majoritarianism” (p.275). A committed majority that finds itself thwarted on highly salient issues has the power to change Senate rules to enable it to enact its policy preferences. According to Wawro and Schickler, the Senate has not adopted majoritarian procedures because, “such a committed majority has never been manifested” (p.263). In their study of the 19th and early 20th century Senate, they strive to document that a sustainable majority was never thwarted by minority obstruction on a significant, salient matter. Southern filibusters were not the cause of the Senate’s failure to act on civil rights because not even a simple majority of senators supported cloture on any civil rights measure considered between 1917 and 1964 (p.263). Although a minority successfully delayed the passage of the Bank Bill of 1841, the minority Democrats permitted the passage of the Whig program in the end (p.73). They argue that the Federal Elections Bill of 1891 was not defeated by minority obstruction, but by the unraveling of majority support for the bill as members of the majority party defected (p.77).

This is a bold argument, and it stands in opposition to much scholarship on the Senate, including the Binder (1997) and Binder and Smith (1997) accounts of institutional development. Wawro and Schickler do not view the Senate’s failure to adopt majoritarian procedures as a “path dependent” consequence of the lack of a procedural motion enabling a simple majority to close off debate. Instead, they contend that Senate rules have persisted because Senate majorities prefer to keep them that way.

Although Wawro and Schickler muster substantial evidence in support of the ability of Senate majorities to govern in the 19th century, it remains unclear how important majority threats to restrict minority rights were among the various reasons for restrained floor obstructionism. In an era when normative theories of party government were far more widely accepted, senators’ beliefs about appropriate legislative procedure exercised important restraint on minority obstruction. Indeed, Wawro and Schickler provide strong historical evidence that such norms played an independent role (pp.39-59). In addition, obstruction was less used when it was less effective, in a period when the institution’s workload was less onerous and majorities could afford to [*490] take the time to fully engage a “war of attrition” with opponents (pp.56-57).

It is more unclear that “remote majoritarianism” can convincingly account for the contemporary Senate. The focus of the book is on the 19th and early 20th centuries, and only limited attention is given to the contemporary Senate, but the remote majoritarianism thesis is often phrased in ahistorical terms: “If existing institutions are producing outcomes on highly salient issues that are unsatisfactory to a majority of the Senate, the rules themselves are subject to change” (p.275). The idea that the contemporary Senate comports with remote majoritarianism is very difficult to accept when so much important legislation over the past 30 years has fallen casualty to the supermajority requirements in the Senate. President Clinton’s entire legislative agenda was stymied by a minority party filibuster at the end of the 103rd Congress (Sinclair 1997, at 49). Binder and Smith (1997, at 135) compile a lengthy list of important post-1970s measures killed by filibusters. Many more majority-supported agenda items have been watered down to accommodate minority objections and achieve a filibuster-proof margin of victory. If legislative majorities do not attempt to change Senate rules today, it cannot be because they are fully able to achieve their policy goals under existing rules. The persistence of those rules must have other, non-policy causes.

Existing Senate procedures may be accepted and tolerated by Senate majorities today given the available alternatives, but this does not mean that a majority of senators designing institutional procedures on a blank slate would actively choose the supermajority procedures that currently exist. Even though it is difficult to obtain majority support for any particular set of procedural reforms, a legislative majority solely concerned with enacting its policy goals would not likely select procedures designed to thwart those goals. But within the Senate context as it exists, battles over procedure come at great cost. They embroil the institution in debates at some remove from senators’ substantive policy goals. They consume valuable legislative time. And procedural reforms often create undesirable unanticipated consequences.

The Wawro/Schickler thesis challenges much conventional wisdom about the policy effects of the Senate filibuster, but it raises more questions than it settles. Can the failure of Senate Republicans in 2004-2005 to marshal majority support for limiting filibusters of judicial nominees be interpreted through the lens of remote majoritarianism? It is true that no majority existed to change Senate rules and support Majority Leader Frist’s plan to invoke the “constitutional option.” A sufficient number of majority party senators may [*491] have concluded that the costs of “going nuclear” were too high, given the extensive resources of the minority party to respond across other agenda items. Individual senators may prefer to keep the filibuster for non-policy reasons because, “the right of unlimited debate makes each senator a more prominent player on the national political stage” (p.263). Senators may have also have preferred to retain existing procedures because the broader public views them as the legitimate “rules of the game” (p.273). Multiple explanations for the persistence of the Senate’s supermajority procedures remain.

Wawro and Schickler have done Senate scholarship a great service with their provocative argumentation, their impressive historical research, and their statistical analysis. The book will be widely read by scholars and graduate students interested in the Senate and American institutions generally. And it will undoubtedly stimulate future research into the root causes of the Senate’s distinctive procedures and the effects of those procedures on the Senate’s deliberative and policymaking capacities.

REFERENCES:

Binder, Sarah A. 1997. MINORITY RIGHTS, MAJORITY RULE. New York: Cambridge University Press.

Binder, Sarah A., and Steven S. Smith. 1997. POLITICS OR PRINCIPLE: FILIBUSTERING IN THE UNITED STATES SENATE. Washington: The Brookings Institution.

Sinclair, Barbara. 2000. UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCEDURES IN THE U.S. CONGRESS. 2nd ed. Washington: CQ Press.

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