(Cross-Posted at www.progressivefix.com--I'm behind getting these up on my blog...)
Ezra Klein links to a Slate article by Ben Eidelson that, I think, is quietly devastating to the idea that the Senate filibuster has somehow destroyed the democratic process. Eidelson shows that from 1991 to 2008, in the typical successful filibuster, the senators behind the filibuster (i.e., opposing the cloture motion) represented states comprising 46 percent of the U.S. population. If filibustering Senators represented 51 percent of the population, then we would conclude that the typical successful filibuster was supported by senators representing a majority of Americans. In that case, at least by small-r republican principles, the filibuster would protect the will of the majority.

Forty-six percent is not 51 percent, of course. But here’s another way of thinking about the effect of the filibuster. It could be argued that, to account for the fact that most Americans’ views on most issues are only weakly held, we should have a higher threshold for legislation passing than support by a simple majority of senators, or even support by enough senators to represent a simple majority of Americans. Instead, for legislation to pass, we might decide that enough senators representing 55 percent of Americans should support the legislation. If that were the procedural guideline, then 
on average, the way the filibuster has worked has been consistent with that guideline.

For the practice of the filibuster when Republicans have been in the minority to be consistent with a procedural guideline, the rule would have to be that enough senators to represent 60 percent of Americans should support the legislation (see 
Eidelson’s table). Interestingly, however, despite the greater use of the filibuster among Republicans, in Eidelson’s data Republican minorities had an average of 20 successful filibusters per Congress, compared with 16.6 successful filibusters per Congress by Democratic minorities. That’s a fairly small difference, although the current Congress is not included in these figures.

Unlike most progressive bloggers, I remain ambivalent about the filibuster. Eidelson’s data shows that Republican filibusters are much more likely to be anti-majoritarian than Democratic filibusters (even if they are not dramatically anti-majoritarian). He proposes as a compromise, replacing the 60-vote rule for cloture votes with a 55-vote rule, which historically would have eliminated most successful Republican filibusters while retaining most successful Democratic ones. Another compromise that’s consistent with small-r republicanism and small-d democracy that might be more palatable to Republicans would be to implement instead something like a 55-percent-
of-the-population rule for cloture votes (while still requiring a majority of senators too). This would set a higher threshold for support than simple majority-senator-rule, would ensure that small-state senators could not thwart the preferences of senators representing a solid majority of Americans, and would not have such dramatically partisan consequences compared with a 55-vote rule (meaning it would have a better chance of being implemented).

 
 
(This is cross-posted from ProgressiveFix.com, the new online face of the Progressive Policy Institute, where I will be posting regularly.  Give 'em a look.)

I was going to title this post, “Ed Kilgore, You are Dead to Me,” but then again, I like Ed a lot, and he’s far more knowledgeable about politics than I am, and I don’t disagree with much of what he’s said about the filibuster.

Just as Ed isn’t “hell-bent on eliminating the filibuster,” neither would I shed many tears if it were to go away. I, too, object to how routine filibuster threats have become. That said, I do think that its elimination would have the potential to hurt progressive aims. Saying that the Senate “has a built-in red-state bias” makes the point — get rid of the filibuster and that bias means that red-state priorities are more likely to benefit from its elimination.

What I’d like to do here is start the first of a couple of posts on political polarization to defend my position that the filibuster wouldn’t be such a problem if we could make the Congress more representative of the nation. I think this point is actually implicit (almost explicit!) in commentary from Mark Schmitt and Ezra Klein that notes how the routinization of the filibuster is a recent phenomenon that owes its timing to the completion of what Bill Galston and Elaine Kamarck have called “The Great Sorting-Out.” Over the past 40 years, liberal Republicans and conservative Democrats have gone the way of the dodo bird, making the parties more polarized along ideological lines.

LBJ could count on Medicare passing in 1965 because the existence of liberal and moderate Republicans made the successful deployment of the filibuster unlikely. On the GOP side, conservatives would have had to court a sizeable number of right-leaning Democrats to make a filibuster threat credible. The difficulty of doing so (particularly with a southern Democrat as intimidating as LBJ applying countervailing pressure) gave Republican moderates little incentive to go along with such a threat. On the Democratic side, the opportunity for a single senator to engage in grandstanding or deal-making in exchange for his vote was limited by the same dynamics — the ability to get moderate GOP votes would have allowed the leadership to ignore such threats. Unless the issue was one as momentous and controversial as civil rights, southern Democrats and conservative Republicans would not collaborate across the aisle.

Fast-forward to 1994, when there were far fewer conservative Democrats and far fewer moderate Republicans. In such an environment, the filibuster became an obvious strategy — because it could work. The filibuster was not a problem until the completion of The Great Sorting-Out. (And yes, Republicans have deployed filibuster threats far more often than Democrats have, largely because the Democrats are more dependent on their moderates than the Republicans are on theirs — a point to which I’ll return in the next post.)

Now, Ed is right that the power that party primaries give the least-moderate voters is not solely to blame for this (though let’s not discount the likelihood that the primary reforms between 1968 and 1972 accelerated the ideological sorting between the parties). But a solution to political polarization need not address its causes.

The key questions, it seems to me, are (1) whether one thinks that the parties are ideologically representative of their supporters or members and (2) whether one thinks that that is true on both sides. Kicking (2) to my next post, I’ll just say that Morris Fiorina’s research definitively shows that the obvious political polarization among elites, political junkies, and elected officials is not reflected among Americans as a whole. The reason that we have more political polarization — even between presidential candidates — is because the candidates on offer have been chosen by less-moderate primary voters and activists. Because relatively moderate voters still have to choose between two options, the growing polarization of party activists and primary voters translates into growing polarization among elected officials — even as the electorate has remained relatively moderate.

Whether you think the electorate is, in its heart of hearts, moderate is irrelevant in some sense, but what is fairly clear is that at least by the measures available, it has not become more polarized. And to circle back to my original contention that progressives should think twice before wanting to throw out the filibuster, political polarization makes the filibuster more important as a check against small majorities. The less moderate the two caucuses are, the more unrepresentative of popular preferences will be the legislation that can pass with narrow margins.

The views expressed in this piece do not necessarily reflect those of the Progressive Policy Institute.
 
 
(This is cross-posted from ProgressiveFix.com, the new online face of the Progressive Policy Institute, where I will be posting regularly.  Give 'em a look.)

A CNN poll out this week must have been a disappointment to some progressives. According to the poll, a majority of the public – 56 percent – supports the use of the filibuster in the Senate, versus 39 percent who oppose it. I wouldn’t bet the farm that this majority would hold up against any number of equivalent questions worded differently, but the results should at least prompt us to stop and think about the growing end-the-filibuster strain on the left.

Ezra Klein and Matt Yglesias, among other progressives, have grown increasingly frustrated with the Senate as the imperative of winning 60 senators’ votes for a health care reform bill has driven the debate on the Hill this year. But hold up! Are progressives really willing to take their chances with a future GOP-controlled Senate empowered to pass whatever they have 51 votes for? With the Supreme Court nominees who could be seated (to say nothing of other judgeships)? With the restrictions on abortion and LGBQT rights? With welfare reforms?

These culture-war issues call to mind one of the benefits of the filibuster — it protects unpopular groups and rights from the tyranny of the majority. Indeed, as Klein and Yglesias have also argued, the Senate’s structure already gives outsized influence to small states with relatively conservative electorates. “Majority rule” isn’t quite as enlightened a principle when the majority is a majority of senators rather than a majority of the national electorate.

Of course, the filibuster also prevents the will of the majority of voters from being implemented in some instances. But there is something to be said for requiring that the most consequential policies have more support than a simple 50.1 percent majority. Large tax changes, changes to major programs, and the creation of new ones are often hard to undo. In some ways it makes sense to subject such legislation to a higher bar.

Klein has argued that the filibuster makes entitlement reform and governing itself practically impossible, but I think this is a misreading of the problem. The reason that prospects for major reforms are so dim is not that such reforms require 60 votes — it is that the Senate has become so polarized that there are too few swing votes available to get to 60.

One can imagine a Senate in which legislators could be arranged in a continuum from most liberal to most conservative such that there were as many moderates as liberals as conservatives. Or there might be a lot of moderates bunched up in the middle with few Senators at the extremes. In such a Senate, it would not be particularly difficult to get to 60 votes — there would often be compromises to be found to get over the bar.

However, the Senate that we have looks like this:
Picture
Those are Poole-Rosenthal scores for the 110th Senate (the previous one), with liberals to the left and conservatives to the right. You probably can name most of those “centrist” dots that bridge the clumps to the left and right (from left to right, the six closest to the center are Ben Nelson, Olympia Snowe, Susan Collins, Arlen Specter, Gordon Smith, and Norm Coleman).

If the “Senate problem” is really about polarization, then the most obvious practical solution that presents itself is one that many progressives may not be too excited about – reform of primary elections so that senators are not chosen from the most ideological parts of their constituencies. But ironically, it’s possible that that would be the best way to achieve more progressive victories while at the same time avoiding tyrannical majorities.

The views expressed in this piece do not necessarily reflect those of the Progressive Policy Institute.*

*Note: The original version of this post omitted the disclaimer.