The Filibuster and Reconciliation: The Future of Majoritarian Lawmaking in the U.S. Senate

Passing legislation in the United States Senate has become a de facto super-majoritarian undertaking, due to the gradual institutionalization of the filibuster — the practice of unending debate in the Senate. The filibuster is responsible for stymieing many legislative policies, and was the cause of decades of delay in the development of civil rights protection. Attempts at reforming the filibuster have only exacerbated the problem. However, reconciliation, a once obscure budgetary procedure, has created a mechanism of avoiding filibusters. Consequently, reconciliation is one of the primary means by which significant controversial legislation has been passed in recent years — including the Bush tax cuts and much of Obamacare. This has led to minoritarian attempts to reform reconciliation, particularly through the Byrd Rule, as well as constitutional challenges to proposed filibuster reforms. We argue that the success of the various mechanisms of constraining either the filibuster or reconciliation will rest not with interpretation bythe Senate Parliamentarian or judicial review by the courts, but in the Senate itself, through control of its own rules. As such, the battle between majoritarian and minoritarian power in the United States Congress depends upon individual incentives of senators and institutional norms. We show that those incentives are intrinsically structured toward minoritarian power, due to: particularism, arising from the salience of localism; institutionalized risk aversion, created by re-election incentives; and path dependence, produced by the stickiness of norms. Consequently, filibuster reform is likely to be continually frustrated, as the 2012–2013 skirmish recently illustrated, and minority dominance will continue unless there is significant institutional change in Congress. Meanwhile, reconciliation will become increasingly central to lawmaking, constituting the primary means of overcoming obstructionism and delay in U.S. policymaking and social reform