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Why does the filibuster survive?

By Gregory Wawro and Eric Schickler (Special to CNN)
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STORY HIGHLIGHTS
  • Eric Schickler and Gregory Wawro: Democrats lost Senate supermajority; filibusters loom
  • Killing filibuster is often desired by the party whose agenda is being blocked, they say
  • Individual senators benefit from system because it confers individual power, they say
  • Writers: Filibuster will stay unless majority party puts agenda before personal power
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Editor's note: Eric Schickler is a professor of political science at the University of California, Berkeley, and author of "Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress." Gregory Wawro is an associate professor of political science at Columbia University, and author of "Legislative Entrepreneurship in the U.S. House of Representatives." Schickler and Wawro co-authored "Filibuster: Obstruction and Lawmaking in the U.S. Senate."

New York and Berkeley, California (CNN) -- A rare -- and modest -- show of bipartisanship emerged this week to allow the jobs bill to advance in the Senate. But rare is the key word here.

The loss of the Democrats' 60-vote supermajority in the Senate means the filibuster remains a daunting threat to President Obama's agenda. As a result, the idea of getting rid of the filibuster once again is gaining momentum among Democrats.

With Republicans taking full advantage of unlimited debate to block Democratic initiatives, it should be no surprise that liberal leaders and pundits are calling for majority rule in the Senate. But the most serious obstacle to majority rule is not Republican opposition to changing the Senate's rules; it is the reality that most senators benefit from the current system, even as it routinely forces major concessions from the majority party.

Just six years ago, Republicans were the ones complaining about Democrats' depriving Bush-era judicial nominees of an "up-or-down vote" and threatening to pursue the so-called "nuclear option" to end obstruction by filibuster. Republicans planned to use parliamentary rulings to enable a simple majority to force a final vote on judicial nominations.

At the time, the same liberal groups that once condemned the filibuster as the last bastion of southern anti-civil rights conservatives were defending its sanctity. So when Democrats lament the injustice of requiring 60 votes for Senate action -- or when Republicans defend the procedure as an essential protection against bad policies -- it is important to remember that the sides were reversed not long ago.

Although it is tempting to dismiss such arguments against the filibuster as self-serving and inconsistent, this does not mean the filibuster is not a major problem in the Senate.

The filibuster was once used by Senate minorities who cared deeply about an issue to test the commitment of the majority. Filibusters generally failed in the 19th and early 20th centuries when the Senate majority fought back by holding all-night sessions that eventually wore down the minority. Even in the mid-20th century, when southern Democrats repeatedly used filibusters to defeat civil rights legislation, their success was enabled by the halfhearted support of many non-southern senators for the civil rights bills they claimed to back.

It is only in the past few decades the filibuster became a routine tool of political combat -- wielded successfully even against a majority that genuinely cares about passing a measure.

Two factors have come together to make the filibuster far more effective: time constraints and party polarization. The Senate's agenda and senators' work schedules are tremendously overcrowded, leaving few senators with the stomach for devoting the time necessary to waiting out a filibuster in the traditional fashion. While the minority only needs to keep a few senators on the floor to delay action, the majority would need to keep at least 50 senators close by at all times to deal with the minority's stalling tactics. This makes it far easier for a filibustering minority to delay action than it is for the majority to force a final vote.

At the same time, the minority's determination to block the majority's agenda has grown. As the ideological gap widens between the two parties, it becomes increasingly difficult to find compromise on major legislation. The party out of power would rather score points against the majority by criticizing it for failing to legislate, than work with it to address pressing problems.

So why does the filibuster survive? One explanation is that any proposal to change the rules would itself be successfully filibustered. But with the nuclear option available there is -- at least on paper -- a way to defeat the filibuster. As became evident during the 2005 showdown over George W. Bush's judicial nominations, a committed majority could use procedural rulings to do away with the filibuster.

The minority could retaliate by attempting to shut down the Senate through extreme delaying tactics, but doing so would risk a public backlash, as occurred when Republicans were blamed for shutting down the government during their 1995-96 budget showdown with President Bill Clinton. In the end, a majority that sticks together and has the mettle to withstand a public firestorm has the tools to change the Senate's rules of the game.

The real reason the filibuster survives is that it continues to serve the interests of most senators. The nuclear option would require the support of a solid majority, which means getting the votes of several moderates. But some of these senators -- Ben Nelson and Evan Bayh come to mind -- stand to lose if the Senate becomes a strict majority-rule institution, since the Democrats would no longer necessarily need them to form majorities to legislate.

Regardless of ideological positions, senators appreciate the attention and personal power that they can receive by threatening to filibuster. The concessions granted to Joe Lieberman after he threatened to obstruct health care reform sent a strong signal about the power the filibuster can confers on an individual senator. It would be difficult to find 51 senators willing to give up this kind of power.

For the moment, the filibuster seems to have the support of most senators, despite the palpable frustration of liberal Democrats. But as the gap between the parties continues to grow, it may not be long before a Senate majority party includes 51 members who are sufficiently committed to a shared policy agenda to pay the personal power costs involved in imposing majority rule.

We can be confident that if such an event comes to pass, the majority -- which could be either Democratic or Republican -- will claim to be acting in the name of democracy and the Constitution, and the minority will respond indignantly that it is standing up against tyranny.

The opinions expressed in this commentary are solely those of Eric Schickler and Gregory Wawro