How filibustering and strategic parties contribute to gridlock
By Gregory Koger
Filibustering: the Fourth Veto
The U.S. Constitution lays out a system with three veto players: the President, the House of Representatives, and the U.S. Senate, with each chamber presumably making decisions by majority vote. The Constitution, of course, says nothing about political parties, which soon formed and promoted cooperation across the three institutions. A cohesive majority party—or one able to artificially induce cohesion by pressuring members or rewarding loyalty—can reduce our legislative process to a single-veto system.
Filibustering is the strategic use of delay in a legislative chamber. My book, Filibustering, shows that over the course of Congressional history there has been organized, consequential filibustering in both chambers of Congress. In the late 19th century the House cycled from occasional filibusters to permanent obstruction to massive reforms installing simple majority rule. My book traces the Senate’s transition from occasional, public, high-effort filibusters in the 1950s to institutionalized supermajority bargaining in the present day. The driving factor in this transformation was the increasing value of time, both for senators as individuals and the Senate as a collective. As time became more valuable and scarce, the cost of a prolonged filibuster on the Senate floor increased so that senators would rather concede to the threat of a filibuster than force the threatening senator(s) to follow through on the threat.
In its current form, filibustering adds a fourth veto to our legislative process, and usually ensures that both major parties in the Senate wield a veto. Unlike the other three vetoes, however, filibustering is an informal practice subject to reform by a simple majority of chamber. This endogenous veto has been sustained through strategic restraint (choosing not to filibuster when it will provoke reform) and majority acceptance of filibustering.
There are several reasons why majority party senators might defend the right to obstruct, but a critical one is that they often recognize the downside risk of being the median voter (and thus pivotal) when their party is trying to pass controversial legislation. We observed this in 2017 when senators voted on controversial bills on health care and tax reform using the budget reconciliation process. Republican senators had to vote for bills they publicly denounced or vote against bills they had promised to support. Historically, a pivotal number of majority party senators have realized that the combination of simple majority rule and party pressure is a recipe for bad policies and misrepresentation of their constituents.
Last, Filibustering provides evidence for a more nuanced understanding of how veto players relate to gridlock. Obviously, senators sometimes filibuster to block legislation, and these efforts can succeed. And, as one might expect, senators also filibuster to force a majority to moderate its proposals. Critically, however, senators also filibuster to expand the Senate’s agenda—both to ensure open debate on legislation, and to hold majority proposals hostage until they get a chance to vote on their own priorities. For example, Senate Democrats repeatedly filibustered to bring up campaign finance reform in the late 1990s, thereby raising the profile of the issue.
In another major work, Matt Lebo and I explain how legislative parties can contribute to gridlock. Our model starts with the observation that winning elections is the paramount goal of Congressional parties, not changing policy. Enacting laws may contribute to this goal, but it can also detract from it. Legislative party leaders may prefer to vote on “message” legislation that reinforces party brands and provides talking points without actually solving policy problems.
We do find that parties improve their electoral prospects by winning legislative votes, but voters punish them—individually and collectively—for excessive partisanship. Both parties thus face a tradeoff between the positive benefits of winning votes and the negative costs of the party unity that helps them win. And it means that “winning” is a zero-sum game: one party’s electoral advantage through winning contested votes is the opposing party’s loss.
The result of this calculus is an arms race between the two parties, so the strength of one party is a function of both its own cohesion and the strength of the opposing party. The current House Republicans illustrate this nicely: they are internally divided on a range of major issues, but competing against a (seemingly) united Democratic party. Speaker Ryan ends up taking a central role trying to unite a fractured conference that cannot moderate its proposals or attract Democratic votes.
The practical implication is that one aspect of reducing gridlock is to increase the payoffs for enacting laws. As long as majority parties believe that legislating is more costly than posing, and minority parties pay minimal costs for blocking legislation rather than negotiating a bargain, members of Congress will find success more dangerous than failure.
Gregory Koger is a professor of political science at the University of Miami.
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Koger, Gregory. 2006. “Cloture Reform and Party Government in the Senate, 1918 to 1925.” Journal of Politics, August, 68(3):708-719.
Koger, Gregory. 2010. Filibustering: a Political History of Obstruction in the House and Senate. University of Chicago Press.
Koger, Gregory, and Sergio Campos. 2014. “The Conventional Option.” Washington University Law Review, July, 91(4)867-909.
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