On Filibusters, It's Groundhog Day in the Senate

A joint Senate and House session at the Capitol in Washington on Jan. 4, 2013 Photograph by Jewel Samad/AFP via Getty Images

Imagine that campaign donors drive all decisions in Washington. Not hard, right? Now imagine there’s just a single legislative body, the House, making all the decisions. That House would get all the money, the sum of what donors are willing to spend to influence policy. Add a president. Now the president and the House are competing with each other to see who gets more of that sum. Add a Senate, and you get even more competition. Each body—Senate, House, and president—are trying to see who can drive their own price of cooperation up the highest.

That’s why we have a filibuster.

Senate Majority Leader Harry Reid is unhappy with the way the current filibuster works and is holding the Senate in suspended animation right now until he and other party leaders come up with a solution. Reid believes that a simple majority can change the body’s rules on the first day of a new Congress, so he keeps failing to adjourn for the day. It is now, as far as the Senate is concerned, still day one of the 113th Congress. According to reporting by Bloomberg BNA’s Nancy Ognanovich, Reid’s Groundhog Day experiment will keep going until his fellow Democrats figure out what to do about the filibuster. Some Democratic Senators, such as Jeff Merkley of Oregon and Tom Udall of New Mexico, want to force a talking filibuster—senators would have to read phone books and the like out loud, in the chamber. Reid has indicated that he wants to stop senators from using the filibuster to stall procedural motions before bills come up for a vote.

Neither plan envisions an end to the filibuster altogether. This isn’t just because Merkley, Udall, and Reid fear they’ll someday be in the minority. The filibuster doesn’t just give the minority power over the majority. It gives the Senate, and individual senators, power over everyone else in Washington.

“Imagine there are two agents, interest groups, willing to spend up to X, and the goal of legislators is to maximize the amount of bribes they intend to receive,” says Roger Myerson. Again, not hard. In 1999, Myerson, a Nobel Prize-winning game theorist at the University of Chicago, started with that assumption and created a model to help explain why some legislative bodies make it hard to pass legislation. “External hurdles,” he says, “create incentive for a chamber to create internal hurdles.” If the president’s veto power and the House’s power of co-legislation create external hurdles, the Senate has reason to strengthen its internal hurdle—the filibuster.

As I wrote in December, the filibuster is not in the Constitution. It had to be invented. I described the filibuster as an accident of history, an unintended consequence of some procedural housecleaning by Aaron Burr. Looking at Myerson’s model, however, it’s easier to think of the filibuster as a rational response to history. A strong minority makes it harder for the Senate to pass legislation, which in turn focuses more donor attention on all Senators.

One theory about why lawmakers would stall on filibuster reform holds that majority senators, concerned that they, too, will some day be in the minority, don’t want to concede the protection the filibuster might give them in the future. Myerson doesn’t buy this. Senators remain in office for six years, he points out, and basic economic theory says that you would always discount any possible future rewards in favor of here-and-now gains. “What [senators] don’t want to speak about,” he says, “is that the Senate would lose some of its premium position if it lost its filibuster.”

In 1917, in response to aggressive filibustering, the Senate majority weakened the power but failed to get rid of it altogether. In 1975, the Senate chipped at the filibuster but again left it intact. After the inauguration, Senators Merkley, Udall, and Reid will meet with fellow Democrats to decide what to do before their day one finally ends. They will not just be trying to figure out how to protect their party, or its priorities. Unless they get rid of the filibuster altogether—which they won’t—they’re trying to figure out how to protect senators. All of them.

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