Democrats have full control of government but the Senate filibuster is blocking large agenda items. How likely is reform and what would it look like? What does the filibuster’s resilience say about the role of partisanship in policymaking? Sarah Binder of George Washington University and the Brookings Institution has long been tracking the filibuster and attempts at reform. She sets the record straight on a special conversational edition.
Guest: Sarah Binder, George Washington University
Recent Work: On the filibuster, reconciliation, and the politics of reform
Transcript
Matt Grossmann: Reforming the Senate filibuster, this week on the Science of Politics. From the Niskanen Center, I’m Matt Grossmann.
Democrats have full control of government, but face a big constraint on their agenda and their ability to reform Republicans’ long-term advantages, the Senate filibuster, and the requirement for 60 votes to cut off debate and vote on underlying legislation. That’s amid calls for reform, but also threats from minority Republicans.
How likely is reform, what role does the filibuster serve, and what does that tell us about contemporary parties and policymaking? On this special conversational edition, I talk to Sarah Binder of George Washington University and the Brookings Institution about her research and commentary on the filibuster’s history and role in today’s Senate. Here’s our conversation.
So many of the myths about the filibuster that you reviewed in your book, Politics or Principles, have endured. You weren’t able to defeat them. So what has changed since then, and why are those myths so enduring?
Sarah Binder: So great, and thanks for having me. So that’s a good question. I think it’s helpful first if I just briefly categorize the myths. So what were the myths that Steve Smith and I were writing about some 25 years ago, when we wrote Politics or Principle? Because some, I would say, we’ve made a little bit of progress on, and some remain deeply, deeply entrenched. So first and just briefly, first is sort of the myth of the origins of the filibuster, the idea that it was part of the framers’ vision of the Senate and part of the early Senate. I’ll just pick through them, and then we can come back to them.
Second, the myth of sort of the 19th century, that senators were just all committed to free speech, and the great and glorious of the world’s greatest deliberative body and nobody ever wanted to have any type of rule that would limit debate. Third, there’s this idea that the myth… or the myth that the filibuster was reserved for the greatest issues of the day compared to today, where everything is filibustered. That turns out to be myth as well.
The fourth myth is that the filibuster really at the end of the day has done little harm and that’s a myth. And then finally that myth that majorities have always wanted it this way. And that turns out is a little trickier. So where have we made progress? I think there is finally growing recognition, even among senators, that the filibuster was not original to the Senate, and that it likely emerged out of a… what I might think of as a procedural mishap early in the 19th century.
I see… you know, you turn on, I try not to turn on cable news, but sometimes when you turn on cable news, you’ll hear all these anchor saying, “Well, this is the fault of Aaron Burr, it was Aaron Burr who created it,” and so forth. And the other myths, I think a little less progress. The issues here is that we… obviously not everybody has their noses deep in Senate history. And the Senate history tells us just a couple of things. First, that majorities have long sought to limit debate in the Senate.
This is not a new problem. It’s an age old problem for the Senate. And that issue is really at the root of many of the myths I just ticked off. It was a problem in the 19th century, Henry Clay, Daniel Webster, orders of the Senate. They all wanted limits on debate. It goes from the myth there of the great issues. There were partisan filibusters in the 19th century, right? We’ve spent a lot of time in recent weeks in Washington. There’s discussions of how the filibuster was used before the Civil War to stop… to protect slavery, to stop voting rights, and civil rights.
But there were a lot of petty filibusters. Who should be the printer of the Senate? Should we take out the censor of Andrew Jackson from the Senate journal? I mean, there was petty stuff in there. And so, all these notions that the filibuster had this great and glorious past, and now it’s abused. None of that. None of that is true. And I don’t know that we’ll really ever make a lot of progress on that, given that it requires people to put aside their contemporary blinders and think about the Senate as a long, long standing institution.
Matt Grossmann: So the most recent historical controversy is over the extent to which it is based in racial history. So I think we resolved that it wasn’t created for that reason, but of course has a very long racial history, but what… I guess, what should be the takeaway there, and how much should that matter to our consideration of it today?
Sarah Binder: So I think that’s a harder question to answer than it seems. So, as you said, the filibuster we know was rooted, not originated, but rooted in slavery and issues of civil rights. And as we just mentioned, it was not the only issue over which senators filibustered and neither it was it the dominant issue, right? But it’s definitely these civil rights filibusters. Those are the ones that have caused, I would argue, the most harm for Americans over a long century of Senate history, whether it was efforts to abolish poll taxes, to ban lynching, to efforts to protect voting rights, all sorts of civil rights questions.
I guess the question is, what do we do with that racial history, and how relevant is it for reform? Right? On the one hand, reform we know doesn’t happen very often in the Senate, but when it does, it tends to be very closely tied to a particular policy contest, a policy issue that’s been blocked. So one question, if we want to say why is the racial history relevant? I guess the question is whether voting rights today has that type of binding power across the Democratic party, right? Are we yet at, again, a moment in history where questions of voting rights are sufficiently important today to 50 Democrats?
Can they agree on what the bill would look like? And is it so important that they would break through and reform, if not ban, the legislative filibuster? So that, to me, is why the past of the filibuster might be relevant. I don’t know about… I don’t think on the face of it, the argument that just because the filibuster was a tool of Southern segregation, that that is sufficient or persuasive argument across the democratic party for why it should be reformed. Right? Just to keep in mind, segregationist senators use a lot of Senate rules, not just the filibuster, right? And we’re not proposing to do away with all the other ways in which segregationist and the anti-civil rights groups permeated the Senate for at least a centuries’ worth of history.
Matt Grossmann: So to bring us up to date, the Biden… and during the Biden administration, we’ve already used reconciliation once as a workaround to the legislative filibuster. And there are plans to use it at least once or twice again with the latest proposals. So, how wide are Democrats going to find this path, and does it mean that the proposals are going to have to be more budget and tax related? We’re going to do additional things for taxes and spending, but less so on the other agendas?
Sarah Binder: When I think about reconciliation, and obviously it’s got to… so its history is from 1974, so we’ve got 40 plus years here. So it pales in comparison to the history of the struggles over the filibuster, but it looks similar, right? This persistent effort to stretch it way beyond original intent or original uses, and for better or for worse, people in different views about how much fealty we should have to the origins of why reconciliation was created.
But it’s not a surprised that majorities that are filled themselves curtailed by supermajority rules should be surprised that majorities, especially in periods of unified government, where they control the White House and both chambers, that they want to stretch it to achieve their top priorities. Just keep in mind, as I know from all your work, American politics is far more partisan today than it was.
And also Senate majorities are smaller. And so, reconciliation is the only tool, really, for an aggressive and persistent majority. Does it force parties to pursue agendas that are more budget or tax related? Certainly on the Republican side it’s been a good fit given the priority of tax cuts over a long time for their party. Yeah. I mean, reconciliation, I think at the outside is like the crowds, the guardrails here, it’s pushing Democrats in that direction, but there are a lot of reasons why we legislate through the tax code regardless of the benefits of reconciliation.
Matt Grossmann: So you don’t think we’re going to get to the end of the year and see, okay, infrastructure and COVID money, we’re able to pass, but you know, anything on minimum wage, voting rights, this other regulatory agenda stalled, and we have this pure culprit.
Sarah Binder: Yeah. So the regulatory part is… I mean, we’ve got a glimpse of it on the minimum wage question when they did the American Recovery Act, and there was a roll call vote, which of course, us Congress watchers loved having a roll call vote. There were eight Democrats who defected from Bernie Sanders and the rest who wanted to quote unquote “waive the Byrd rule” so they could put minimum wage increase in the reconciliation.
But it’s really hard to know why those eight Democrats voted against waiving the Byrd rule. Is this a procedural principle? Was it they’re worried about precedent of busting through reconciliation? Did they not like the $15 minimum wage, they prefer something lower? All the above? So I don’t think Democrats with their 50 Democrats yet for really busting through reconciliation, but there may well be 50 for stretching it to have multiple reconciliation bills more than we’re used to.
Matt Grossmann: So one thing that reformers often say is that these folks in the middle would have all the power under a 50 vote Senate, so why aren’t they in favor of moving it there? Molly Reynolds, who we’ve had on the podcast before, has found that it matters what those bills look like that are coming down the pike, because even though those moderate senators are considering their power on the floor, they’re also kind of considering what the agenda would be. And so she points to the Waxman-Markey climate bill last time as being important for that. So is it that maybe we have a very large and liberal democratic agenda that’s making these moderate senators give pause, and why, if they could still block it on the floor?
Sarah Binder: Oh, that’s the million dollar question. The purest form of the question is, what is Joe Manchin thinking? But, the broader version of the question is precisely that. Why are majorities… why don’t they yet have a majority for nuking the filibuster? And I think Molly is right to point to the ability of moderate members, in particular, to point to and to hide behind and blame the rules, right? “Oh, we couldn’t do that because we need 60.”
And so we never really know where different senators are on particular proposals, and whether in fact there are 50 for a version of climate change, or a version of voting rights, a whole host of issues, gun control, and so forth. But of course, there’s… senators and moderates aren’t the only ones blaming the rules and blaming supermajority rules. Right? Think about if you’re a House member, you’re a House swing district member, and you know that HR1 is not going to be enacted into law the way it is. It comes out of your House, but you get a lot of bonus points from your party and activists for voting for it. And you can tell the moderates back in your district, “Well, look, this is just the first push, and the final bill will be different.” So everybody-
And this is just the first push and the final bill will be different. So everybody’s hiding behind the filibuster. So are presidents, right? They get saved from having to really, push comes to shove, sign things into law or not, because there are parts of them that they oppose. So on the one hand, yeah, why isn’t Manchin, why isn’t he out there wanting to put the Senate into a majority rule, because yes, his power certainly is greater? But I think it’s really hard to know until we really know where 50 senators are on many of these top priorities.
Matt Grossmann: So the other, I guess, side of that is people say, “Well, if you want this to happen, then you need to say which of Manchin’s priorities are going to be able to pass that can’t pass pass now. And there’s going to be other things holding these liberal agenda items back that he doesn’t support.” So I guess is it true that maybe we are forcing them to decide between sort of do they want the whole Democratic agenda or do they want only the small number of things that can pass with bipartisan support or through reconciliation? So is that true or is there some middle ground that might get Manchin on board?
Sarah Binder: It’s really hard to tell. For one, just to keep in mind is it’s not just Manchin. We all know it’s Sinema. But you look at their latest reporting, Politico will name eight to 10 Democratic senators who have yet made up their mind where they are.
Matt Grossmann: And how many signed onto the letter only a few years ago, right?
Sarah Binder: Yeah. And of course, where you stand depends on where you sit. So people change. I guess it’s just a caveat on Manchin that he’s in good company. The names that surprised me I saw on some Politico story was even Brian Schatz of Hawaii who’s a very liberal voting record, in general record. And yet he seemed to be in their list of people on the fence.
Matt Grossmann: So what are the prospects for that sort of slow issue specific expansion? Are there kind of plausible ways to counter or change the Byrd rule that do carve out a particular amount? If we said yes, there has been a carve out a year from now, what would you have expected it to look like?
Sarah Binder: So it’s definitely technically possible to do these carve-outs. Of course we’re still left with the question, is it politically feasible, even if it’s technically feasible. Really the issue here is that once, and we saw this I think with nuking the first set of nomination filibusters in 2013. Once a party does it for anything large, it just really lowers the cost of the next version the next time they want to nuke something. First of all, just because you can avoid blame, point to the other side and say, “Well, they’re the ones who did it first or most recently.” Of course, every time you make a carve-out, you, you really weaken the power of the rules. Some senators may care about that. They may care about it more when they are in the minority than the majority, but rules lose their binding power., They can’t protect themselves. So anytime you nuke something, small, medium or large, you’re undercutting the force, which is kind of a normative force of the rules.
Matt Grossmann: So the other big talked about reform is some kind of bringing back of a talking filibuster or a changing of the rules beyond that allow for blocking bills with less than 60 votes, but beyond that. So what is this debate about? Does it really make much of a difference who has to talk? Is it just about who has to have a majority at the ready at any time while a filibuster is ongoing?
Sarah Binder: So the talking filibuster… Let’s put it this way. So what maybe helpful what exactly is the talking filibuster and why we have it, and then to get to my usual caveat that the devil’s always in the details, but especially so on talking filibusters. We have this notion, this picture, whether it’s from the Hollywood classic, Mr. Smith Goes to Washington, or for those who read Robert Caro, Lyndon Johnson, Master of the Senate, this notion of Senators giving very long speeches, yielding for questions, not giving up the floor. That is the majority essentially telling the minority, “If you are opposed to this bill, stand on the floor and show us what you got.” And then it becomes a war of attrition, as Greg Koger and Warren [inaudible 00:19:19] and their work in filibuster has nicely termed it, which is the last team standing.
Now it turns out senators as early as the 1970s, didn’t really want to spend all their time listening to each other talk, and leaders on both sides of the aisle didn’t want to spend all that time not making progress on other bills, which were important to members of both the Democratic majority and the Republican minority. So we get to what we call tracking. That is instead of filibustering and getting stuck there, leaders negotiate. It wasn’t a rule. It was just they negotiated a consent agreement. Okay, we’re going to do EPA bill first, and then we’ll move on to the farm bill. And if one gets filibustered, no problem. We’ll move on to the second track. Of course, then we get a change of the cloture rule of 1975, and suddenly we have a world where leaders structure the chamber by filing [inaudible 00:20:14] motions that then need 60 votes.
And so why take the risk? Why spend the time? Why inconvenience either party, especially the majority, by spending days and nights… Old talking filibusters went on for months, right? Even like the 1957 Civil Rights Act that Lyndon Johnson wanted passed, it took months. So that’s what reformers, many of them are pushing for. Let’s bring back this talking filibusters.
I think a couple dilemmas here. First, the details here. Some senators are very clear what they want this to look like. Senator Merkley, almost for a decade now, has had a proposal, which would in essence, once a talking filibuster began, if they were to give up, the presiding officer would declare the debate over and then there’d be a simple majority cloture, which doesn’t exist in the rules right now. Other people just say, “Don’t imagine little changes. Let’s just change your behavior. Let’s just force Mitch McConnell and the Republicans to hold the floor.” And then it’s not really clear how they get to a vote.
There is precedent in Senate rules that allow the presiding officer when no one else wants to talk, he could put the question to a vote, but we tend not to see it used that way. So there’s some behavioral changes here that majority and the minority would have to undertake to convince me that a talking filibuster would actually sort of really create the conditions that its proponents are pushing for.
And just to keep in mind, if it’s the middle of the night and a tactic of course of filibustering senators is to notice the absence of requirement there suddenly there’s a quorum call in the middle of the night and it’s the majority that wants to keep the bill going. The opposition would love to kill it by not having a quorum. And so it’s the majority who has to round up the 51 senators in the middle of the night. Otherwise, the Senate has to adjourn.
So do talking filibusters really put the burden onto the opposition? Maybe, maybe not. Is that sufficient to get the Senate to up or down votes? I think we really don’t know yet.
Matt Grossmann: So what about the spirit of the proposal that it just needs to be harder, there needs to be more of a cost to filibustering, even if we don’t eliminate it? Is there a feasible way to achieve that?
Sarah Binder: I guess this is factually true as well as rhetorically true. It’s up to senators. Are they willing, especially on the majority side of the aisle, are they willing to invest the time in a particular issue knowing that the minority in fact might like the limelight and might be willing to keep a filibuster going? Are they willing to give up their own time, which is spent meeting with groups, raising money, traveling, all sorts of things how senators spend their time? Do they really want to be around the Senate 24/7 for weeks or longer on end in pursuit of one particular policy issue? That’s a decision they have to make, and that’s the only way to shift the burden to the opposition.
Matt Grossmann: So I try to parse very, in detailed fashion, what Senator Manchin says when he talks about the filibuster. And one thing that I don’t think has gotten that much attention is that he seems, although when he says he’s for reforms of the filibuster, he seems to imply that the reforms themselves would be agreed on by both parties in some respect. And it seems like that’s another way of saying there won’t be any reform. In other words, if you’re only for a reform to empower the majority party when it’s supported by the minority party, then maybe you’re not for reform at all. What do you think?
Sarah Binder: So you put your finger on precisely the distinction here between support for reform and support for how you’re going to get reform. Let’s say you support majority cloture, but you don’t support the nuclear option. Well, we’re not really talking about that around Washington, though we probably should be. And that’s what Joe Manchin, as you point out, seems to be signaling, and Sinema as well. Now that’s also not a new issue in the Senate, right? That is really the history of those 20th century efforts to try to reform the filibuster. And in fact, we post majority cloture. We have enough, not a lot of votes, but we have enough votes and debates from 20th century episodes to know that there was often a majority for majority cloture, but not a majority for doing it through the new [inaudible 00:25:34] we now call the nuclear option.
So Manchin is not alone. He’s not novel as a Senator who sees those issues differently, but how you ever get to under the Senate rules require actually if there’s a filibuster of the motion to reform the filibuster, that’s a two thirds vote. So we are reaching pretty far into a Republican conference ranks to imagine a bi-partisan proposal for reform that they’ll accept. And then what would you have to give to the Republicans, to the minority that would make it worthwhile for them? I’m hard pressed to see that.
Matt Grossmann: And doesn’t the same logic apply to any of this, any of the overruling the parliamentarian on the Byrd rule or any kind of exception to the rule? If people aren’t willing to do that with a majority vote, then it’s pretty hard to see any reform working.
Sarah Binder: Yeah. And I think that’s what we got a taste of on that minimum wage vote on the waving the Byrd rule. Again, with the caveat, it’s hard to know processing why senators took that position that they did, but the fact that there were eight Democrats who aren’t willing to go along with a top, top Biden priority from his campaign about $15 an hour minimum wage suggests that there are at least some senators here in the majority for whom the rules really are a sticking point. And they are cautious about “circumventing them.”
Matt Grossmann: So Frances Lee has also been on the podcast and she finds that we sort of overstate the degree to which we get sort of partisan policymaking in general. We still have most major policies passed with bipartisan and overwhelming support. I looked just at the last Congress and saw that all 10 of Mayhew’s major laws passed with bipartisan and super majority support as well. So I guess some people would say the filibuster is sort of just an excuse here, that majority parties really don’t like to pass things with only their own support. They like that to be a pretty rare kind of phenomenon. What do you think?
Sarah Binder: So-
Matt Grossmann: … kind of a phenomenon. What do you think?
Sarah Binder: So I guess the answers will be yes and no. Frances and Jim Curry wrote a really nice new book that kind of lays out the argument about sort of what they call the limits of parties here. And it’s certainly the case that outside of reconciliation and outside of the handful of rules that, as Molly Reynolds calls them, exceptions to the rule, where they’ve changed the statute to empower majorities. Outside of those exceptions, it is difficult to legislate obviously, not just because of this filibuster, but because of other kind of veto points built into the system. Now, having said that, I’m a strong believer in denominators. I want to know, what of the things at the end of the day that aren’t getting enacted and often aren’t getting any traction, although we know them to be the big issues of the day? Because that’s where the other issues are that may be more partisan that don’t end up in the numerator of an enactments.
Matt Grossmann: So I guess to push a little bit on this, we’ve passed one major bill in the new Democratic unified government, and it was a bill that had no pay force, and was a obvious response to the largest issue of the moment. Now that we’re moving on, we’re already starting to see some of the dynamics that Lee and Curry point to, that a lot of the problems are within the Democratic caucus. And a lot of the problems are sort of in the interest group world, and that there are challenges to lawmaking that that might be blamed on the filibuster, but really it’s just very hard to get momentum for something that is going to pass narrowly with only the single majority support.
So I guess just looking at the agenda ahead, there will be one story that says, “Okay, a lot of stuff failed and it was all because of the filibuster,” but there always be that kind of second alternative that, “Well, a lot of stuff failed and the filibuster was kind of the excuse,” but it failed really because it failed to develop an interest group enacting coalition and to get enough support even within the majority party.
Sarah Binder: I guess I would think of it this way, that it’s not 100% of either. So what do I mean by that? Back when Steve Smith and I wrote Politics Or Principle, one of the exercises we did was to go back and try to figure out what were the measures that appeared actually to have been killed by a filibuster, where there was evidence of majority House support, majority Senate support? Which is hard to establish given the filibuster, but also the president would have signed something. And that’s a little hard to do, but we did come up with dozens of measures over the 20th century that there does appear to have been actually killed by the filibuster. So on the one hand, yes, there are lots of veto points, including the filibuster, and it clouds what we know about what would pass by just party rule. But on the other hand, we do have evidence of the filibuster actually killing things, so it’s not a clear story to me, either way there.
Matt Grossmann: So another way this is sometimes looked at is to the extent to which the filibuster pivot, the most likely 10th Senator in our case, to go along with the policy is really particularly influential. And there’s some debate about it, but some analyses sort of show that it may not be that influential. And in our period, it may be just that there isn’t very much that would appeal to that 10th Senator, but would not appeal to the Republican Party as a whole or a larger part of it. So I guess, to what extent is this just about whether something is bipartisan as in supported by both parties’ leaderships versus not, versus that there is actually some potential to get that 10th Senator that shows up at the White House?
Sarah Binder: So I think this is a good question. I think about it in two different ways. So the first way of course, is that when we’re trying to figure out which is the pivotal pivot, is the majority… Are we talking about a majority party? Are we talking about the floor? Are we talking about the filibuster, that 60th Senator? Of course, that depends on the underlying distribution if we think in a left-right world, the underlying distribution of ideologies in the Senate. Were we back in a world where 30, 40% back in the mid-20th century of the Senate were somewhat centrist, that there were conservatives in the Democratic Party, and there were actual liberals… We call them liberals in the Republican Party. The 60th Senator is not going to be that far away from anybody else.
And so that’s quite a bit different in a bipolar world where we are today, where what the 60th Senator wants can be quite a bit different than what the 50th person wants. And in fact, if you get 60 votes, you’re probably going to get 80. So I think the impact of the filibuster pivots is conditional on what the rest of the Senate looks like. But I think the other point here, or the other way to think about it, is I think sometimes we have in mind a view… And this is something I’ve written with Frances Lee a few years ago. I think we often have in mind a very zero-sum view of the world, that my party gets something, and so your party has to lose something. And so in that sort of deal making, it’s not often what we get.
Or at least, not always what we get. It’s more often… And we see this in all those COVID bills last year that were quote unquote bipartisan. They were more win-win. They were positive-sum. Democrats got enhanced unemployment benefits. Republicans, they really got their top priority with the small business PPP loans and grants. And so it’s not that we have to moderate bills to pick up the 60th Senator, it’s that the two-party leaders, often the leaders, are in the room and each party is trying to get its top priority, and in exchange has to sort of say to the other party, “Okay, you can have your top priority too.”
Matt Grossmann: So just to push a little bit on that, is it that we have this distribution of… So one story is that the 10 senators went to the White House, but those 10 senators mostly agree with their party, and so there’s sort of not any way to satisfy them without satisfying the Republican Party as a whole. Another story is just that we’re in a very partisan world, and so there’s only two worlds, the world in which we get full bipartisan support, or the world in which we pass things by one party alone, and this hope for something in the middle is really just not there, even if there was some agreement.
Sarah Binder: Yeah. I think that is a reasonable way to think about it. And it does at least give rise to the question, what are the conditions under which, if there are any, or what are the issues under which, or the circumstances under which, any of those 10 Senators, or all 10 of them, would in essence, go and make a deal? And 10 is a lot of Senators, so it suggests it’s not going to happen. But we have ample episodes in support of what you just argued, where McConnell, as a minority leader over the course of the Obama administration to pull back those Republicans, even those like on Dodd-Frank, where they were negotiating. He said, “Nope.” Called Bob Corker and said, “This is over. You’re not negotiating anymore.” And in that world, you’re never going to get to 60, unless you have the leadership in the room getting what they want.
Matt Grossmann: So we’ve also had James Wallner on, who’s argued that we’ve sort of understated the role of the minority party in filibuster reform, that the minority party can make credible threats in some circumstances, and that, for example, they do sometimes and don’t others, like when we were extended to the Supreme Court only sort of a lackluster opposition. So McConnell has said, “Don’t test me. We’re going to have a scorched-earth Senate. The world will end.” How credible are those threats, and what do they entail?
Sarah Binder: So for a while, at least in the run up to 2013 when we saw that sort of big… The banning of most of the nomination filibusters. So political scientists had really kind of two competing views of these threats, and I would put James Wallner in closer to the camp where Steve Smith and Tony Madonna and I had written, that the thread of… Let’s step back a second. What are these theories about? They were about why the Senate so rarely reforms the filibuster, as Wallner has argued that minority threats are key to preventing filibuster reform. So these are arguments for why the Senate rarely changes. And one was, as you suggested James have argued, the threat of minority retaliation tame the majority. They back off reform. They don’t want to live in a world where the Republicans have blown up all the bridges.
Of course, as Harry Reid, the majority leader in 2013, said when he went nuclear, “There are no more bridges to blow up.” They had assessed the situation was so bad on nominations that they didn’t feel there was a cost, and so those threats from the minority, they fell on deaf ears. The other argument, this one is more sort of Greg Koger, [inaudible 00:38:55], they’ve argued historically that the threat of going nuclear tames the minority. The minority is going not to blow up all the bridges because they’re worried that the majority is going to do away with the filibuster by this nuclear motion. Well, all of us were wrong, because Reid went nuclear. These are theories of why the Senate doesn’t change. So what are we to make of this? Is the threat of a minority retaliation credible?
Well, it really wasn’t in 2013. And in fact, the Republicans didn’t really shut things down. They could’ve. They could’ve tried, but they didn’t. They probably decided it wasn’t worth their time, especially after Democrats had essentially secured nominations getting them onto the court. But at the same time, is the threat of going nuclear, is that credible? Well, as you pointed out, so long as Joe Manchin is saying, “I’m not going to ever move to nuclear,” then no, it’s not a credible threat. So I think we’re in a world here where… I mean, to some extent, it’s a bit of a test is going to go on now. If Republicans are worried about Democrats possibly converting Manchin and Sinema and others into being willing to go nuclear, is that going to tame their obstructionism? Is that going to curtail Republicans from blocking consent and voting against cloture on everything? Maybe, maybe not, but here we are, another test on the credibility of both sides here to try to get what they want.
Matt Grossmann: So just give us a sense of what that would look like, though. If McConnell is not bluffing to the extent that he can, and there is some change to the filibuster, what would it look like? And I guess what would temper our… Why might it hurt the minority party more than it would support them?
Sarah Binder: So what would it look like? And then we’ll come back to whether or not it would hurt the minority, because I think that’s at least debatable. What it would look like? As they now always have someone stationed on the floor, but they would be objecting every time a Senator, Senate majority leader, other Senate Democratic senators ask for consent. And this can be anything from negotiating the agreement on when they’re going to vote over the next two days to waiving the rule that doesn’t allow committees to meet after 2:00 PM. Sort of the need for consent, it permeates how the Senate runs itself. They’re asking consent all the time, and a really nuclear move on the minority’s part would never agree to any of that. And that would certainly harm the majority. And would it blow back on the minority? Well it’s usually majorities that get blamed for failing to govern and failing to make progress, even if they pinpoint and want to blame the minority for it.
Matt Grossmann: So the other threat is that the majority now might be the minority later, but there has been some kind of pushback to that, especially by Democrats saying, “That Republicans just don’t have as big of an agenda that that is being blocked by the filibuster.” They’re sort of, as you said, “Better able to get kind of their tax and budget stuff through and may not have a demonstrated agenda that they would be able to get through if they gained full power and only took a majority to pass legislation.”
So what do you think of that argument? How much should Democrats fear Republicans having a filibuster-free Senate?
Sarah Binder: I suspect were Democrats to nuke the filibuster, I do think they would miss it when they found themselves in the minority. Just as a general, I think they’re used to living in a world where, even on things as routine as spending bills, it can’t be done without buy-in from the minority, even if we think majorities, Republican majorities, might not be as draconian by cutting entitlements and so forth as they claim they want to be. So there’s that.
Is it the case that Republicans have a small governing agenda and the things that they want to be done these years judges, which are majority rule and tax cuts, which are majority rule. There’s a lot of heft to that as an assessment of today’s Republican Party in what many would call a lack of a governing agenda. So in that sense, yes.
I guess I would just point out or keep in mind that periods of unified party control, they’re relatively rare in our contemporary political system and when a majority gets them, when the party gets them, they don’t last very long at all. And so we’re also talking about a world of majority rule under divided government, where they will have to be compromise regardless because the other party is in the White House. So I’ve never done a long historical careful study of which party has benefited more or less.
Matt Grossmann: So the other objection we hear to filibuster reform is that it would make the Senate like the House. You have written a lot on differences between the chambers as well, so to what extent is that well founded? Is it the rules that make the House and Senate different and to what extent are they still different?
Sarah Binder: So I think sometimes people think I’m pretty naive when I say this, but whatever, I’m a bit of a skeptic that you would automatically, or even very swiftly have the Senate just become just like the House if the filibuster were substantially weakened. Definitely the rules make a difference here in the policy choices of the two chambers. However, I mean, as we all know, senators represent different types of constituencies, even if, right, there’s more of sort of partisan distinction, right? Very few delegations with split party delegations in the Senate today. They do have longer terms. They don’t all, obviously if they’re up in a standard election, come in, they don’t all come in when a new president is elected. Some of them never run on the ballot with the president. And so there is some installation, some degree of insulation, from these sort of pervasive partisan pressures that otherwise incurred lawmakers to think and act like their fellow partisans.
Matt Grossmann: So we often get rules reform when we don’t just have sort of one interest that would, benefit not just the majority party, but maybe some other interest that might be cutting, committee chairs, or back benchers, or leadership or something, or the institution itself. So is there any kind of an acting coalition for reform in the Senate that that is anything other than what will be characterized as a majority party power play, it might not have other support?
Sarah Binder: So I’m a little skeptical that in today’s Senate, those passed type of bi-partisan coalitions with, as you said, overlapping interests are really can be recreated today. I think in the past, at least in the Senate where we’ve seen reform of Rule 22, the cloture rule, there was at least the most recent one, right, where they actually changed the rules. So back in 1975, and they lowered the threshold to 60 votes, there was impatience within both parties with the extremes of their parties, both on the left, on the right, but of course it was a much less partisan period. And so the parties looked differently. And so we shouldn’t be surprised that the middle, the middle in both parties, might’ve been bummed out by the activists and the bomb throwers on the left and the right.
Is there a potential coalition today? We’ve seen over the last decade an occasional little handshake at the beginning of the Congress where they have pared back a little bit with bipartisan support, but these are pretty small reforms.
So just one example, there used to be three debatable motions, in all, to get the Senate into a conference committee, and that essentially has been reduced to one debatable motion. So we’ve eliminated three filibusters down to one filibuster and funny enough, both sides could agree to that. So could there be small incremental tryouts? Possibly. What would Republicans would need to get something out of it? Perhaps some guarantees on offering amendments, but things are pretty toxic, so it seems in the Senate today. And so I’m a little skeptical that the conditions right now are really ripe for even the smallest of handshakes.
But then again, I was quite surprised in 2013 as I was staring at Reed bringing the Senate nuclear, so who knows?
Matt Grossmann: So tell us about what you’re working on now about sticky rules and fragile norms in American politics and sort of how is reform of the filibuster in the Senate, sort of a central case? Is it like other sort of institutional issues we’re facing now, where does it fit?
Sarah Binder: So that’s an excellent question and I’m only sort of starting out on this project and trying to figure out what exactly is the motivating question, or how would I do this project empirically? I would say, first of all, that I… And this is to me to some degree, a lesson from the Trump years, that it can be hard to disentangle the effects of rules and the effects of norms that an awful lot of norms under and norms of sort of cooperation and norms of forbearance, that is I’m not going to break all the guard rules just because I have the authority to do so. It’s hard to disentangle them. And that these rules persist because they’re buffeted by this normal forbearance, and that’s what makes real sticky, right? It’s harder to change them because there’s some sort of agreement that both sides, we’re not going to totally exploit them.
That said, it’s not just the Senate filibuster, where we see these. And some people call them sort of constitutional hardball or institutional hardball. There is lots of hardball in American politics.
Trump replacing Janet Yellen as Chair of the Fed broke a very, very long standing, almost the whole history of a 100 year history of the Fed, a bipartisan tradition of reappointing, the previous president’s Chair, even if he or she was from the other party. Hardball is everywhere, majority’s bend rules, when they can to get the outcomes they want. At the same time, there’s a lot of forbearance in our system.
And I would like to know, not just in the case of the Senate filibuster, but like, what are the conditions that lead parties to actually pull the trigger on hardball? Whether it’s stretching reconciliation, whether it’s Nancy Pelosi, the Speaker, holding on to the Articles of Impeachment, the first set of Trump impeachment articles, while she waited to see if any witnesses would’ve come forward, it seemed, for a Senate trial. So I want to understand a little bit more about why any bit of forbearance still exists, why when and where, and of course, with what consequence.
Matt Grossmann: So we spent an hour talking about the potential for filibuster reform. And honestly it doesn’t seem very likely in the near future. So I guess I’m wondering why it seems like everyone believes that it’s inevitable? It will happen at some point? The Joe Mansions of the world are dying out and so the next time sort of there is a majority party that can do it, they’ll they’ll do it. Can both be true? Do we understate the stability of American institutions or is there somewhere in between?
Sarah Binder: That’s the $6 million question. I already gave you a million bucks for an earlier question. So the long march here, the long history in the Senate, is towards a majority rule, right? It was originally moved by majorities. Once it strangled itself and saddled itself with filibusters, and you ask that sentence so forth, over history, there’s been incremental and sometimes bursts of reform towards a majority rule. And I think that those same urges, right, the frustration of majorities trying to legislate and to solve problems, regardless of whether the parties agree on whether they are problems, that urge to make the Senate work that’s age old. And given the number and types of problems that Democrats at this iteration have identified, I’m not surprised they’re still pushing. And given how partisan all of our political institutions increasingly seem to be no surprise it seems to be boiling again. So when it happens, whether it happens, I obviously don’t know, but these pressures really aren’t subsiding anytime soon. I certainly don’t think.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available biweekly from the Niskanen Center and part of the Democracy Group Network. I’m your host, Matt Grossman, thanks to Sarah Binder for joining me. Please check out her books and articles and her regular commentary on the Monkey Cage at The Washington Post, and then listen in next time.