(Editor's Note: This piece first appeared at legbranch.com on March 14, 2018.)
The future is not inevitable. And it cannot be predicted with certainty. There is no iron law of history according to which events unfold inexorably.
This is especially true in Congress where, according to Stanford University political scientist, Keith Krehbiel, members with incomplete information make policy decisions on a daily basis under conditions of uncertainty.
Yet despite this, a number of senators appear confident that they can predict with certainty what will happen in the future. In my previous post, I pointed to recent comments by Ted Cruz (R-Texas) regarding the filibuster. He confidently asserts that its days are numbered. “I think if the Democrats ever regain the majority, they’ll end legislative filibuster…That’s where their conference is.”
Cruz’s comments reflect the broader sentiment among Senate Republicans. That is, they are certain that their Democratic colleagues will eliminate the filibuster in the future when they retake the majority. The irony is that Republicans’ confidence about the fate of the filibuster has driven them to push for abolishing it first.
Political theorists call this dynamic the Oedipus effect, a term coined by Karl Popper. The Oxford English Dictionary defines the Oedipus effect as “the influence of a prediction on the predicted event.” Today, we commonly describe it as a self-fulfilling prophecy.
With regard to the filibuster, the fear that it will not exist in the future is leading many Republicans to call for its elimination today. And in doing so, they partially confirm their earlier predictions. Their only mistake being that Republicans, not Democrats, would be responsible for eliminating the filibuster.
The good news for those concerned about the filibuster’s fate is that its elimination is not inevitable. In my previous post, I listed a number of reasons why Republicans cannot assert with certainty what Democrats will do based solely on the fact that they nuked the filibuster in 2013.
Simply acknowledging Republicans’ inability to predict the future does little to reduce the anxiety they feel as a result of its uncertainty. In a sense, they should be heartened by that uncertainty. The fact that the future is not predetermined makes it possible for senators to influence what will happen in it.
The ability to obstruct, at least as we commonly think about it today, is rooted in the Standing Rules of the Senate. Specifically, the ability to filibuster is granted by Rule XXII. Rule XXII requires the support of two-thirds of all senators present and voting to end debate on a proposal to change the Standing Rules. This effectively precludes the majority party from altering the text of those rules over the objections of the minority party.
Yet notwithstanding these super-majoritarian hurdles, Senate majorities have always had the ability to determine the institution’s rules. They may overcome the super-majoritarian barriers erected by Rule XXII by establishing a new precedent by simple-majority vote. While minorities may filibuster such efforts, their appeals can be tabled without debate, also by a simple-majority vote. As a consequence, the majority has the technical means to overcome minority obstruction so long as it is willing to do so.
But Republicans may also deter a future Democratic majority from using its power to eliminate the filibuster. Specifically, they can make credible threats to retaliate should Democrats threaten the nuclear option. This links the Democratic majority’s efforts to go nuclear with sub-optimal outcomes for individual Democrats should they do so. The expectation of increased costs should deter a sufficient number of Democrats from supporting the nuclear option to the extent that the Republicans’ retaliatory threats persuade them that it would be more difficult to achieve their individual goals in a post-nuclear Senate.
Previous work in this area has focused almost exclusively on Rule XXII and the cloture process when explaining how Senate minorities may use parliamentary procedure to constrain the majority. Yet a limitation of such approaches is that they do not demonstrate precisely how those procedures ultimately circumscribe the ability of Senate majorities to change the institution’s rules in the first place. It is true that provisions of Rule XXII requiring a three-fifths super-majority to end debate on nominations and legislation and a two-thirds super-majority to end debate on proposals to change the Standing Rules empower the minority and constrain the majority. Yet Rule XXII itself is subject to alteration by a simple-majority. Thus, the super-majoritarian provisions of Rule XXII are themselves insufficient to prevent the utilization of the nuclear option. In short, Rule XXII itself cannot constrain a determined majority to the extent that it may be changed or circumvented by the nuclear option.
The Constitution, along with the relative importance of the majority’s agenda in a particular Congress, gives Senate minorities the necessary leverage with which to protect the procedural prerogatives granted to them by the institution’s rules and practices. Specifically, these are the provisions in Article I, section 3, clause 4 designating the Vice President as the Presiding Officer of the Senate and Article I, section 5, clause 3 stipulating that any member may call for a recorded vote with a sufficient second.
To the extent that these constitutional provisions make certain retaliatory tactics resistant to restriction via the nuclear option, and to the extent those tactics impose costs on members of the majority party, then the threat to use them makes it possible for Republicans to prevent an otherwise willing Democratic majority from eliminating the filibuster in the future.
Specifically, Republicans can increase the costs of processing nominations and considering routine legislation for Democrats- even in a post-nuclear majoritarian Senate- by requiring a recorded vote for confirmation and passage, respectively. Doing so would increase the physical costs for senators and negatively impact other priorities on the Democrat’s legislative agenda due to the time required to conduct recorded votes.
Similarly, Republicans can increase the political costs of passing that agenda for individual Democrats by forcing votes in relation to politically difficult amendments. They can do so by offering a so-called third-degree amendment despite the majority leader filling the amendment tree and then appeal the subsequent ruling of the Chair that the amendment is not in order. Doing so forces a recorded vote in relation to the amendment and/or the majority to filibuster the appeal.
Both tactics are resistant to restriction via the nuclear option. The only real way to prevent individual senators from offering prohibited amendments and then appealing the ruling of the Chair to force a recorded vote is to have the Presiding Officer not call on senators seeking recognition. Setting aside the impracticality of barring some members, or all members, of the minority party from speaking on the Senate floor in perpetuity, the institution’s constitutional structure effectively precludes chamber majorities from delegating such authority to the Presiding Officer.
Article I, section 3, clause 4 of the Constitution stipulates: “The Vice President of the United States shall be President of the Senate.” The Constitution only allows the Senate to select its Presiding Officer in the absence of the Vice President. Yet any power senators delegate to the President pro tempore will also be available for the Vice President to use whenever he assumes his role as the Presiding Officer of the Senate. As the constitutionally designated Presiding Officer, the Vice President is thus charged with administering the Senate’s rules and ensuring order. Yet because the Vice President is not directly accountable to the Senate, its members have historically been unwilling to delegate significant authority to the President pro tempore, who the Senate may select, because they cannot prevent the Vice President from assuming the Chair and exercising that authority in such a way that would be harmful to their interests.
While obstruction and the value of the Senate’s time have both increased significantly in recent years, it is unlikely that senators would reevaluate delegating significant authority to the Presiding Officer in the face of minority retaliation for going nuclear. Imagine a Democratic majority allowing Vice President Mike Pence, or a Republican majority allowing Vice President Elizabeth Warren, a significant voice in how the Senate sets its agenda and conducts its business! In the absence of a strong Presiding Officer, the tactic of appealing the ruling of the Chair cannot be restricted because members will always have recourse to the floor. The Chair may rule such appeals dilatory, and thus out of order. But those ruling may be appealed.
By threatening these tactics, Republicans can reduce the likelihood that Democrats will eliminate the filibuster over their objections in the future. They offer Republicans the procedural means to persuade rank-and-file Democrats that it is not in their interest to nuke the filibuster. But their effectiveness depends on the extent to which Republican senators are willing to defend the filibuster in the face of additional nuclear efforts to restrict their rights. The current push to further gut the filibuster suggests that both parties would like to see it limited, if not eliminated entirely, in the future.