The Recent Impact of Supermajority Rule in the Senate

Brendan Nyhan brings together the following list of major legislative initiatives that attracted majority support in the senate but couldn’t achieve cloture:

Year Majority vote, no cloture
2002 Permanent estate tax repeal
2003 Estrada and Pickering nominations
2004 Medical malpractice limits
2005 Patriot Act reauthorization
2006 Estate tax cut/minimum wage
2007 Iraq withdrawal deadline
2008 Reid stimulus proposal

Democrats were in the minority for the majority of these years. So on net, you would expect to see progressive policy goals advanced by the filibuster. But it seems to me that the three progressive initiatives that were blocked by the filibuster—higher minimum wage, Iraq withdrawal deadline, and timely economic stimulus—are considerably more significant than the conservative initiatives that were blocked.

After all, the difference between a “temporary” estate tax cut (what we got) and a “permanent” one is pretty ephemeral. The actual future of the estate tax is being determined by the 111th Congress which is exactly what would have happened either way. Estrada and Pickering were kept off the appeals court so instead we got other, equally conservative judges. Had Estrada gotten onto the Appeals court, it’s likely that he would be filling either Roberts’ seat or Alito’s, but either way there would be two hard-core right-wing Bush appointee Supreme Court justices. The Patriot Act thing felt like a big victory at the time, but I don’t know any civil libertarians who think the current state of surveillance policy is any good.

The 2006 thing is hard to score. What happened is that there was a bill to raise the minimum wage, then the GOP attached an estate tax cut to the bill. Probably that package never would have come into being in a majority rules senate—instead estate tax cuts and minimum wage hikes would have passed separately.

This leaves us with blocking a curb of medical malpractice damage limits as the filibuster’s lasting progressive legacy. I think that’s pretty small beer compared to the stimulus and Iraq stuff, to say nothing of comprehensive health reform and the clean energy bill on the which the fate of the planet rests. Which is to say that though affection for filibustering is bipartisan, the actual impact is not symmetrical. The multiplication of veto points advantages political powerful insiders—elite economic interests, the national security establishment—and makes broad-based public interest reform more difficult.