• The filibuster, part 3: Recent use

    This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

    My filibuster education was enhanced considerably by health reform. Never before had I followed the Byzantine journey of legislation so closely. As the Republican strategy of opposition and obstruction solidified, the filibuster played a key role in shaping legislation and dictating the schedule of its passage. Of course, that passage very nearly failed. It was the prominence and influence of the filibuster during debate over health reform that motivated my study of it and the writing of this series.

    About health reform’s improbably successful journey through the Senate, Jennifer Senior wrote in New York Magazine,

    The measure squeaked through on the basis of an exception (a fleeting Democratic supermajority) and a technicality (reconciliation requires only 50 votes). Before that, the Senate of the 111th Congress had been an awesomely inefficient body, threatening the most filibusters and reauthorizing appallingly few bills; almost every Democrat had a story about legislation held hostage.

    Senior makes clear that health reform was not the only piece of legislation filibustered during the first year of the Obama presidency. As Gregory Koger notes, the filibuster played a prominent role early in the 111th Congress.

    In January [2009], Senate Democrats were compelled to trim their first major bill—a “stimulus” package of spending and tax cuts—from $940 billion to about $780 billion ($787 billion in the final law) in order to gain the votes of a centrist bloc of moderate Democrats and three Republicans.

    More recently, the filibuster was employed as a delay tactic during debate over financial regulation reform.

    The Senate health reform bill famously had to run the filibuster gauntlet, requiring all 60 Democratic Caucus members to pass the Senate in December of 2009. In March 2010, amendments to the bill passed in a budget reconciliation process that operates under filibuster-proof rules. So, health reform was hard to pass, but it has always been so. Historically it was killed relatively early in the process. That filibustering was so apparent in the 2009-2010 effort is, in part, testimony to a successful legislative strategy, one that gained the support (or blunted the opposition) of major special interest groups, including health care providers and organized labor.

    That Democrats succeeded in turning health reform legislation into the law—the Affordable Coverage Act (ACA)—does not mean the Republican filibuster had no tangible effect. In fact, the ACA adheres more closely to conservative ideals than it might have in the absence of unified Republican opposition. It is in structure, and in some details, similar to past Republican health reform proposals and to the Massachusetts health reform championed by former (Republican) Bay State governor Mitt Romney. It also includes many of the ideas Republicans proposed as alternatives.

    What Republican unanimity in opposition did was to force Democrats to appeal to the most conservative members of their caucus. Had a moderate Republican or two (e.g. Olympia Snowe or Susan Collins) voted for reform, a few relatively conservative Democrats could have either voted off or might have felt safer in supporting a bipartisan bill. You might recall that Olympia Snowe even supported a weak form of public option (via trigger). The ACA has no such thing.

    The filibuster of health reform presented Democrats with a collective action dilemma. Months passed during which fewer than all 60 members of the Senate Democratic Caucus wanted to vote for the latest proposal but the party had a strong interest in seeing a bill become law. This gave rise to some of the now infamous “backroom deals” such as the Cornhusker Kickback (which was ultimately removed in the reconciliation amendment).

    Given that health reform did pass, the most significant way in which the Republican filibuster affected the legislative process was to cause substantial delay. That’s not surprising since that’s what filibuster is, if nothing else. It took three months for the bill to become law (March 23, 2010) after it had passed the Senate (December 24, 2009). And there were many earlier delays as well. In fact, the broad structure of reform hadn’t changed significantly between the summer of 2009 and when it ultimately passed both chambers of Congress. One could argue that Republican opposition and obstruction delayed passage and enactment by nine months. (See the NY Times, “A History of Overhauling Health Care.”)

    That’s significant because little else occurred in those nine months. With health reform dominating the news and sucking up all the political oxygen, nothing was accomplished on environmental or financial regulation reform. That’s the narrow sense in which health reform was actually a victory for Republicans. They succeeded in delaying and obstructing substantial pieces of Obama’s legislative agenda. With the clock running, every day’s delay was a day closer to the mid-terms, in which Republicans hope to regain seats and begin building toward the reestablishment of their own majority and the retaking of the presidency.

    Should the Republicans regain control of Congress and the presidency, the shoe will be on the other foot. The filibuster is not a Republican maneuver. It’s a minority one. Unless rules that shape its use are changed, expect Democrats to include it among their tactical options just as did their colleagues across the aisle.

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