Elizabeth Warren fights the good fight against the filibuster, but it’s probably a losing battle

Here’s some intriguing news: Elizabeth Warren has vowed that her first priority upon entering the senate this January will be an effort to reform the filibuster. On the first day of the new senate session in 2013, senators will be voting on the rules, and filibuster reform would call for a simple majority vote, rather than the two-thirds vote normally required. Warren’s effort is supported by seven new Democratic senators-elect and by senate majority leader Harry Reid.

It’s not yet clear what kinds of changes will be proposed, but Warren has written, “The change can be modest: If someone objects to a bill or a nomination in the United States Senate, they should have to stand on the floor of the chamber and defend their opposition.” Currently, the filibuster can be invoked if it is supported by just 41 of the senate’s members. A simple request by a senator is all that is necessary; no Jimmy Stewart in Mr. Smith Goes to Washington-style marathon feats of oratory are needed to support it, so long as the senator has those 41 votes.

Could even a minimal reform of the filibuster be passed? So far, prospects seem doubtful. As of now the Democrats lack the required 51 votes to institute the change.

Truth be told, though I fervently support Warren’s effort, I’m not terribly optimistic about its chances for success. I don’t doubt that the filibuster is a disgrace to the human race that makes a mockery of our democracy. Our constitution, with its federalism and its three branches of government, already has a built-in conservative bias; with so many potential veto points, it is very difficult indeed to achieve meaningful change. Extra-constitutional institutions, like the committee system in Congress and the filibuster, make change even more of an uphill struggle.

And hey, just because a policy is deeply undemocratic, it doesn’t mean that our democratically elected representatives will not vote to uphold it! First, it’s not like the electorate is chomping at the bit to end the filibuster; data I’ve seen suggest that the general public either supports the filibuster or is ambivalent about it. Second and perhaps more important, senators, even those in the majority, have strong, rational reasons to support it. Political scientists Eric Schickler and Greg Wawro, who have written a book about the filibuster, have this to say:

So why does the filibuster persist? We believe it is because most senators believe that they benefit as individuals from the opportunities and leverage it provides them. The threat to obstruct allows senators to extract concessions from presidents, to raise the visibility of issues they care about (and raise their own profile in the process), and to play an outsized role on the political stage when they find themselves in the minority. Changing the filibuster does not require overcoming entrenched rules nearly as much as it requires changing the calculus of individual senators – that is, persuading them that voting for majority cloture is in their short and long term personal interest.

There is no doubt that Republicans, who tenaciously cling to their strategy of reactionary obstructionism, want the filibuster to continue. But it’s not only the Republicans who benefit from, and support, the filibuster. Plenty of Democrats do as well. Barack Obama, for example, has barely said a word publicly about filibuster reform; if it was a priority for him, then surely he’d be devoting more political capital to it. We’ve also heard relatively little about filibuster reform from senate Democrats. Indeed, it’s notable that the current reform effort is being led by newly elected first-term senators, not the more powerful, established senate veterans.

As Schickler and Wawro have pointed out, all senators, even those in the majority party, benefit individually from the filibuster. Specifically, I would argue that the main way senate Democrats benefit from the filibuster is that it gives them an all-purpose excuse not to get anything done. Democrats in Congress have deeply conflicted interests. On the one hand, they are the party of the middle class and the poor, and rhetorically, and often enough in reality, they champion the economic interests of ordinary Americans. On the other hand, they depend heavily on Wall Street and other corporate money for campaign contributions, and so often enough they support policies that benefit those interests as well.

That’s why even the major reforms Democrats have supported, like health care reform and reform of the financial sector, has been so watered down. The mildness of those reforms continually disappoint supporters. But so long as the Dems have the filibuster to kick around, they have a handy scapegoat on which to blame their failure to enact policies that are more robustly populist. Sans filibuster, however, they would be have to make many painful votes that would force them to choose between their two main constituencies, moneyed elites vs. the 99%. With the filibuster, they don’t have to make those choices, and therefore can continue to serve two masters. I don’t believe it’s an accident that the rise of the filibuster, from the mid-70s to the present, coincides with the rise of economic inequality.

All of which explains why, as much as I hope I’m proven wrong about this, I doubt we will see any filibuster reform in the new Congress. To reform the filibuster, we will need a countervailing power to the one percent, in the form of a mass movement. Right now, that mass movement does not exist. And so long as that is the case, our democracy will continue to be a shambles.

Kathleen Geier

Kathleen Geier is a writer and public policy researcher who lives in Chicago. She blogs at Inequality Matters. Find her on Twitter: @Kathy_Gee