Faculty Opinion: Filibuster Reform's Impact
The changes the U.S. Senate made to the filibuster rules on November 21, 2013 are the types of parliamentary tactics that make legislative scholars excited to go to work each day. The term “filibuster” refers to the various tools available to legislators to prevent bills from being considered by the legislature. While many Americans associate the filibuster with the 24-hour speech of Jimmy Stewart’s character Jefferson Smith in the film Mr. Smith Goes to Washington, the most common form of filibuster in the U.S. Senate is requiring support of at least 60 of the 100 members of the Senate to end debate on many types of bills. The decision of 52 of 55 Senate Democrats to eliminate such cloture votes on executive branch nominees and most federal judicial appointments is largely the product of the state of divided government in Washington. The current combination of a Republican-controlled House of Representatives, a Democrat-controlled Senate, and a Democrat president makes Congress unable to contribute to the policy-making process, which consequentially elevates the importance of the courts and federal bureaucracy. The most important immediate consequence of the filibuster is likely to be a shift in the ideological make-up of the U.S. Court of Appeals for the District of Columbia Circuit.
Why were 52 Senators able to suddenly change how the Senate operates? Article I of the U.S. Constitution is silent as to how cloture votes must be conducted or whether they should be required at all. Instead, the requirement of 60 votes for cloture is one of the many rules that the Senate sets for itself at the start of each session of Congress. These rules are determined by simple majority rule, creating the following puzzle: Why is the majority empowering a minority of senators with a procedural tool that allows the minority to subvert the preferences of the majority? The most commonly cited explanation for this behavior comes from the literature in economics on strategic interactions when two adversaries repeatedly interact across time. The majority party knows that it is likely to be the minority party at some point in the not-too-distant future. By giving the minority party filibuster power now, the majority party is making a strategic calculation that it will be more likely to receive filibuster power when it is the minority party in the future.
What changed to upset the previous equilibrium? In addition to considering the future, the majority party may be hesitant to change filibuster rules because it may reduce its ability to pass other types of legislation. The minority party's strongest response to the removal of the filibuster is to stall the majority party’s legislative agenda. For example, the minority party can insist on a formal vote for all matters, rather than letting many small orders of business pass on the basis that no one objects (National Journal, 11/26/13). Thus, the Republican senators have the power to make it more difficult for the Democrats’ policy agenda to pass the Senate in order to punish the Democrats for changing the filibuster rules. However, this requires positive probability the Democrats’ policy-agenda succeeds absent changes to the filibuster. This session of Congress is on pace to be one of the least productive in recent memory in terms of producing meaningful legislation (NBC News, 11/26/13), and there appears to be no substantively important policies that the Republican-controlled House, the Democrat-controlled Senate, and President Obama agree on. Thus, little legislation is at risk though the Democrats are making relations even worse in Washington.
Executive branch nominees and judicial appointments are different because they only need to be confirmed by the Senate, and thus cannot be voted down, like most legislation, by the Republican majority in the House. Given that there are currently 55 senators who caucus with the Democrats, there are likely at least 50 senators to support nearly all of Obama’s bureaucratic and judicial nominees. There are currently 93 judicial vacancies, 51 with a candidate awaiting confirmation (UScourts.gov). While Republicans still have some procedural tools available to slow these confirmations (The New York Times, 11/28/13), I anticipate that nearly all of these 93 vacancies will be filled before the 2014 elections. There is also a possibility that some additional vacancies open up because some liberal justices may strategically retire while the Democrats control both the presidency and the senate.
Why might some liberal justices strategically retire? Democrats can see that their Senate majority is seriously at-risk in the 2014 midterm election. Senators up for reelection in 2014 were swept into office along with the Democratic wave associated with President Obama’s victory in 2008. Hence, Democrats are defending senate seats in a number of states, like Alaska, Arkansas, Louisiana, Montana, South Dakota, and West Virginia, that generally support Republican candidates for federal offices. Republicans are in good position to hold a majority of Senate seats if they win most of these elections. The Iowa Electronic Market, an on-line political betting market, currently gives the Republicans about a 40% chance of controlling the Senate after the midterm elections. The is up from about a 20% chance on October 17th, immediately after the government shutdown ended and before all of the problems with the implementation of the Affordable Care Act came to light. Current patterns suggest that few, if any, Obama judicial appointees will be approved by a Republican-controlled Senate, causing Democrats to believe that this may be their final opportunity to get Obama’s judicial nominees approved.
To see the impact that this will have on judiciary, consider the case of the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit is responsible for deciding cases that relate to the balance of power across branches of government and rules made by federal agencies, like the Environmental Protection Agency (EPA) or the Securities Exchange Commission (SEC). There are eleven positions on the court. Judges appointed by Republican presidents hold four of these positions, judges appointed by Democrat presidents hold four of these positions, and three of the positions are vacant. Obama’s nominees for these three positions were filibustered this past summer. Given that cases are generally heard by three randomly selected judges from this group and judges tend to be ideologically aligned to the president that nominated them, this suggests that upon approval of Obama’s candidates, this court becomes immediately more liberal (See The Washington Post, 11/23/13, for analysis for the expected impacts of new justices on each of the different circuits.)
Interestingly, the same Congressional gridlock that made it harder for judicial nominees to be approved may also be increasing the importance of bureaucracy and the judiciary in policy-making. The vacuum created in Washington by Congressional inaction increased the policy-making opportunities for federal agencies, which already are the most underappreciated policy-making bodies in Washington. As policies made by agencies often are challenged in federal courts, this makes the aforementioned D.C. Circuit Court even more important. For example, the D.C. Circuit Court recently overturned the EPA’s “Transport Rule,” which limited the amount of pollution from coal-fired power plants that could travel across state lines, in a two-to-one decision. The two judges voting to overturn the law were George W. Bush appointees, while the judge voting to uphold the law was a Bill Clinton appointee. Having three more Obama appointed judges on the D.C. Circuit increases the odds that judges support the policies of agencies headed by Obama appointees, and thus make policy more liberal in spite of Congressional inaction.
In sum, the filibuster reforms adopted this November mean long-lasting policy consequences. I expect the Senate to quickly approve Obama’s judicial appointees, after which the judges' length of service on the federal court is at their personal discretion. The impact—particularly pronounced on the D.C. Circuit Court, which will no longer be evenly divided on partisan lines—will be increasingly important in shaping policy.
It remains unclear whether the filibuster will be weakened further by future Congresses. There is little reason for Senate Democrats to remove the filibuster more broadly, because it is unlikely that the House would approve any bills passed by fewer than 60 members of the Senate. This would change if the Democrats or Republicans regained control of both Houses of Congress after the 2014 midterms. I speculate that the November 21st reforms are a precursor for broader changes in the power of the filibuster. We have to wait until next time that a party has unified control of both the House and Senate to see how the filibuster is redefined.