Not Another Politics Podcast – Episode 30

Does the ability for minority parties to delay and obstruct legislation force the majority party to only pass bills that are more moderate? It’s a question that informs much of our political debate around dilatory tactics like the filibuster.

University of Michigan Political Scientist, Christian Fong, has a paper that models this question and argues that these delay and obstruct abilities lead to policies that are closer to what the median voter may want. We discuss that paper, the filibuster and the possible strategies of Sen. Joe Manchin on this episode.

Listen on Apple Podcasts or wherever you enjoy podcasts.

Transcript

William Howell:

I'm Will Howell.

Wioletta Dziuda:

I'm Wiola Dziuda.

Anthony Fowler:

I'm Anthony Fowler, and this is Not Another Politics Podcast. So the Democrats, they have control of the presidency, they have control of the House, and they have control of the Senate, albeit by a small margin. Wouldn't that seem to suggest that the Democrats get to do what they want? They're going to enact their wishlist. They're going to spend trillions of dollars on green energy, and they're going to make DC a state and so forth. They're going to change the election laws in such a way that advantage them for decades going forward. Isn't that what we should expect to see?

William Howell:

Not so much, right, because we have a Congress that presents all kinds of opportunities for obstructionist behavior by a minority party, and I think that's what we're seeing right now by the Republican Party, just as we saw the same kind of behavior by the Democratic Party when there was unified Republican control not so long ago. So the minority party can dig in its heels, delay, and threaten to filibuster. Part of the challenge in trying to figure out what's going on within Congress today and in Congress more generally is to try to make sense of this obstructionist behavior and what its consequences are for the legislative agenda that actually, ultimately gets adopted. Wiola, you talked to some folk who have a paper that tries to speak to precisely these issues.

Wioletta Dziuda:

Yes. I talked to Christian Fong from the University of Michigan, who has a paper with Keith Krehbiel from Stanford University called Limited Obstruction. In this paper, they write a model that tries to elucidate an underappreciated aspect of the filibuster which is related to obstructionism but actually within their model leads to better policy-making. Hi, Christian.

Christian Fong:

Hi. Very nice to be here.

Wioletta Dziuda:

Very nice to have you on our podcast. I'm very excited to talk to you about your paper that you wrote with Keith Krehbiel from Stanford University called Limited Obstruction, and, in particular, I'm interested in how this paper sheds light on a very under-appreciated aspect of the filibuster. In the paper, you have a model where you assume that actually we are in a world in which, let's say, Democrats have 60 votes in the Senate. So if they wanted to, they can eventually pass any bill. But you assume that Republicans can either allow for this bill to pass very quickly or they can delay the bill so that instead of passing two bills, let's say, you pass one bill. So can you walk me through the logic of your model?

Christian Fong:

Yes. As you said, the idea is that we're going to suppose we just have some big bag of bills and the majority party, who we'll call the Democrats for now, can pass any bill they want. It's just a matter of how long it's going to take. Who's going to decide how long it's going to take? Well, it's going to be the Republicans, right, because if even a single Republican says, "I'm not going to go along with this unanimous consent request to allow the bill to pass quickly," either instantly or waiving some ripening time or some post-cloture debate, it's going to take a long time. So the question is, first, how do the Republicans decide how much to obstruct bills, how much to delay bills, and then, second, conditional on that, which bills do the Democrats actually choose to bring to the floor? So you can only delay the bill for so long. You've only got those two days, ripening plus the post-cloture debate times, however many times you need to invoke cloture.

Christian Fong:

The first thing you need to figure out is, okay, well, if the Republicans just aren't willing to go along with anything, what's going to happen? Well, if everything is going to take a long time no matter what I do and I'm the Democrats, I might as well pass whichever bill is going to give me the highest payoff. Right now, it might be something like H.R. 1 for the Democrats, some big election reform bill that's going to help them, they hope, win the majority in all future elections. Okay, now I'm the Republicans. I'm deciding, okay, which bills do I want to delay? If I try to delay everything, the Democrats are just going to pass H.R. 1, which sucks for me. I'd really rather they not pass that because I would like to have a chance of winning the majority at some point in the future. Then the question is, okay, well, if I let them pass bills quickly, they can pass more bills, and so is there any package of bills, any group or pair of bills that I can let the Democrats pass quickly that they would prefer to passing H.R. 1, their very favorite bill, slowly?

I'd first identify, okay, well, here are all of the sets of bills, all the pairs of bills, where if I gave them these two, they'd prefer it to just H.R. 1. Then I say, "Okay, well, do I like the idea of them passing any of these pairs better than I like them passing H.R. 1?" If the answer is yes, then we've got the opportunity to strike a deal. I can approach the Democrats and say, "Hey, I'd be willing to give you a bill on infrastructure and a bill on, take your favorite, some additional stimulus stuff or some sort of tax bill, and I'll let you pass those bills relatively quickly. Of course, if you do, you're not going to have enough time to pass your election reform bill. You're not going to have enough time to pass H.R. 1." This is the basic logic of the bargaining over delay as you're looking, as the minority, for these opportunities to make you both better off by letting them pass two bills or multiple bills quickly rather than one bill slowly.

Wioletta Dziuda:

That's very interesting because when you think about the filibuster as the 60% requirement, we tend to hope that this is going to produce bills that are a little bit more moderate. That doesn't seem to be materializing in practice, at least not when we think about big issue bills, but at least that's the logic. What you are saying is if we focus instead on those dilatory aspects of the filibuster, we don't end up with bills that are moderate in the language and their goals, but we end up with more moderate bills from the pool of the bills that the majority party wants to pass.

Christian Fong:

I think that's exactly right. Whenever you're thinking about how moderate is a bill, there's a tendency to think about how moderate is it relative to the status quo or how moderate is it to the actors involved, but I think you've described it exactly correctly. The best reference point is how moderate is it relative to what the majority otherwise would have done. Here, yes, this is a case where you could be passing potentially very liberal bills, like a big two trillion dollar infrastructure plan, but that are more moderate than the alternatives.

Wioletta Dziuda:

So, in your paper, you have a very good discussion of the 111th Congress and how you think the mechanisms you are outlining in your paper actually was playing out then. So can you walk me through that?

Christian Fong:

The 111th Congress, which was the very first Congress of the Obama administration, so 2009 to 2010, and what's really distinctive about the 111th Congress is that for most of that period the Democrats had this 60 vote filibuster-proof majority. If they were willing to spend the time necessary to invoke cloture on a bill, they could pass any bill that they wanted without any Republican votes. This is very rare. This happens about once every 20 to 30 years. This has actually never happened for the Republican Party, as an interesting bit of trivia. They've never had a filibuster-proof majority. During the lame duck session, this two-month period between when you had the elections and then when the new people who got elected actually take office, the Democrats did horribly in the 2010 midterm elections. They lost their massive majority in the House of Representatives, and it's going to flip to the Republicans, so the Democrats knew, "Okay, we only have about two more months to pass whatever kinds of bills we want, and then after that we're probably not going to be able to pass anything for the rest of the Obama administration."

A lot of the previous conflicts between Democrats and Republicans over the Affordable Care Act, over Dodd-Frank, and these fists-out, knuckle-dragging, bruising affairs took a really long time to pass, so that's what people were expecting for the lame duck. We were just going to see the Republicans dragging their feet all the way, and maybe the Democrats can pass something, but whatever happens, it's going to be really slow. That's not what happened at all. Something really surprising happened. Two really big bills passed. One of these is the repeal of the Don't Ask, Don't Tell policy, which is a policy that prevented openly gay and lesbian individuals from serving in the military, and then the second was the ratification of New START, which was this arms control treaty with Russia.

At the time, analysts were really puzzled by this because they said, "Well, wait a second. The majority of Republicans opposed both of these bills. Even though they didn't have enough votes to prevent the Democrats from invoking cloture, they surely had enough people to slow down the passage of these bills, and if they had obstructed them to the same degree that they tried to obstruct the Affordable Care Act or Dodd-Frank, they could've prevented the other one from passing. What gives?" What the model tells us is to understand this kind of a situation, you need to look to, well, what else might the Democrats have done? If they had known they were only going to be able to pass one bill during that lame duck session, which bill would they have passed?

The lurking monster behind this whole thing that I think was animating a lot of this compromise that you see out of the Republican party is the DISCLOSE Act, which is actually very much like H.R. 1, which the Democrats are trying to pass right now, this bill that would dramatically change the disclosure rules around campaign donations and outside spending and political campaigns in a way that most people thought would hurt the Republicans substantially more than it would hurt the Democrats. Now, this issue is a hot button issue for Mitch McConnell. He's all excited about campaign finance and hates the idea of this. But then beyond just the majority of the minority leaders' personal hatred of this, this is a bill which would potentially undermine the ability of Republicans to compete in elections, therefore, their ability to ever take back the Senate.

So I think what the Republicans had was a frank conversation. They said, "Look, I know a lot of you guys don't like New START. I know a lot of you guys don't want to repeal Don't Ask, Don't Tell. But if we resist them on this or if they sense that we're going to resist them on this, they're going to say, 'Well, we can only pass one bill anyway, so we might as well pass the DICLOSE Act because that one would benefit us the most to pass.' But if we act like we're willing to cooperate with them in a limited sense by just not obstructing too much on these two bills, maybe we can prevent them from even attempting to pass the DISCLOSE Act." That's exactly what happened. I think that gamble worked out pretty well. I think these things happen on smaller scales all the time, but I just like that as a particularly clear example of what this bargaining can look like.

Wioletta Dziuda:

So that's interesting. That makes me think, of course, about the current political situation, and if you think about the Joe Biden administration, they definitely seem to have this sense of urgency that they have to be very active. They have to be passing bills. They have to have some successes on their record very, very quickly. What your paper is saying is that perhaps Republicans can use this to their advantage. Perhaps the reason why we don't seem to hear as much opposition to the infrastructure bill as you would otherwise expect because there are other bills that they are afraid of more, like the H.R. 1 bill that you mentioned. You could envision that those bills would change the legal landscape more against Republicans than the infrastructure bill does. I wonder what your thoughts on that are.

Christian Fong:

I think you got it exactly right. If I were Mitch McConnell right now, my primary concern would be how do I prevent the passage of H.R. 1? How do I prevent the passage of statehood for DC and Puerto Rico? Because when you're thinking about the Republicans' electoral interests, their ability to remain a viable electoral coalition for winning control of the Senate, these are the ones that do the most direct damage. You pass a big infrastructure bill that includes a bunch of priorities you don't want or you allow the Democrats to pass such a bill, and it's unpleasant, your constituents make a stink about it, but two years down the road, it's not going to really matter that much for your viability as a political party. I wouldn't expect large scale defections in the Republican Party, or they link arms and you see a lot of things passing 98 to two. But I do think you'll see the Republicans being selective about where they really gum up the works and where they allow things to pass in a reasonably expedited fashion.

Is there opportunity for some limited forms of cooperation between Senate Democrats of the Biden administration and Republicans? Well, maybe. That depends how many more things like infrastructure the Democrats have up their sleeves. I have seen some preliminary moves on immigration. It seems like maybe that would be an issue where the Republicans would be more comfortable coming to some kind of not overly liberal solution. But who knows how many more such things there are? I'll be really curious to see myself how much the Biden administration's able to come up there, how many, potentially, the Republicans are able to feed them that say, "These are things where if you explore this, you're going to get a lot less pushback from us."

Wioletta Dziuda:

It's interesting because one thing you mentioned made me think, look, if we again focus on the 60 votes requirement and forget about these other dilatory tactics, again, we could tell the same story that you just told, is that perhaps Republicans could go to Joe Biden and say, "Look, we are going to vote for your infrastructure bill, but we're going to vote against the other two bills that you really like. Which do you choose?" Of course, Joe Biden would go for the infrastructure bill, but what's nice about these other tactics is that if it was only by the 60% of the vote, the Republicans would have to vote for the infrastructure bill.

They would have to go on the record supporting it, and that might not be actually politically beneficial to them. I don't know. They might end up not voting for this as well because of the political fallout, while here they can allow this bill to pass without having to vote for it. They just allowed it to pass by saying, "Okay, we are not going to obstruct it." So I like this behind the scenes working of the political machines that allows them to reach compromises without necessary being on the record as supporting certain bills that are not beneficial, necessarily, for their constituency.

Christian Fong:

I think that's exactly right. I think so much of what happens in the United States Congress is essentially a stage for television consumption, not just the floor debates but also a lot of the procedural maneuvering as well. You have to be really alert to these possibilities, that, in fact, there's a lot more cooperation than you know. They're just intelligently doing it in a way that's not easy for the Fox News and MSNBC crowd to sniff out and attack them for.

Wioletta Dziuda:

Interesting. Okay. So let me just see if I understand it. One of your suggestions would be to just get rid of all these obstructionary tactics, just make them illegal. Then we would definitely have more bills passed. If anything, there seems to be this sentiment in the public that we have too few legislative activities, too few bills being passed. It's not that we have this abundance of partisan bills. It's just we have a lot of gridlock. So why don't we get rid of this obstruction? What you are telling me is, yes, if we got rid of those dilatory tactics, we would have more bills passed, but they would be less bipartisan in nature and that the ability of the minority party to delay, to call for debate, call for more votes is a way for them to extract concessions from the other party. Am I getting it right?

Christian Fong:

Yeah. Well, the puzzle you just laid out is exactly what people like you and I like to think about when we're thinking about Congress, right? Whenever we see some procedure that looks weird, geez, this really seems like a waste of time and the majority could get what they want more efficiently if they just changed the rules. People like you and I tend to believe that the Senate can change its rules at any time by a simple majority vote or violate its rules at any time by a simple majority vote.

So what's going on here? Why don't they do that? These puzzles usually will teach us something really interesting about the way the Senate works, and here's what I think this particular puzzle teaches us, is I don't think that the benefits of the opportunity to delay accrue exclusively to members of the minority party. Often, when people are thinking about filibuster reform, they're thinking about this in partisan terms. They're thinking, "Okay, whichever party's the majority that I happen to like needs to be able to accomplish more of its agenda and more of the things that I put them there to achieve, and so let's change the rules that we can do that."

But, of course, there's significant disagreements within the majority party about what is to be done. If you look at the majority right now, what somebody like Joe Manchin or Kristen Sinema would like to do is very different from what somebody like Chuck Schumer or Elizabeth Warren would want to do with their time. So I think one other function of this is that these opportunities for delay don't just let the Republicans get in on the action, but they also tend to steer the issues in the agenda more towards the kind of stuff that the most moderate members of the majority party would like to see passed. I think somebody like Chuck Schumer would love to get rid of these sorts of procedures and be able to have a bit more control over what's going to get passed and give the Republicans less of a say, but I think it's not going to happen because you have these moderate Democrats who would lose out and don't want to see policy move in that liberal of a direction.

Wioletta Dziuda:

That's interesting. So you're saying that if we didn't have this ability to delay the passage of the vote, then, actually, the position of someone like Joe Manchin would be not so strong because, at the end of the day, a bill would be put up for a vote and he would have to choose between voting with his party or rejecting the bill, and, most likely, he would be hard-pressed to vote against his party. But he can use this threat of obstruction and the threat of delaying in order to get policy concession from Democrats so that he has a bill that's a little bit more moderate than what otherwise would be put up for a vote.

Christian Fong:

That's right, and, in fact, I think it's one better than that because Joe Manchin doesn't even have to do his own dirty work, right? He can let the Republicans take all of the heat associated with obstructing and delaying these bills and to push towards an agenda that Joe Manchin likes better while professing total innocence over this. Then when the Democrats go to try to change the rules, he can say, "No, no, no, it's a matter of principal. I think that we should try to encourage bipartisanship, that extended debate, so I'm going to protect the rules." So he gets the best of both worlds. He gets the policies he wants, and he gets to place the blame on the Republicans for not having more progressive policy.

Wioletta Dziuda:

Great. Thank you so much. This was very interesting.

Christian Fong:

Well, thank you so much. I had a wonderful time. I really appreciate you inviting me on.

William Howell:

So, Viola, this is not an empirical paper. It's a theory paper. Can you walk us through the model? What are the mechanisms in play, and what is it telling us?

Wioletta Dziuda:

The way the authors view their paper is they want it to just make this general point about obstructionism, and filibuster is one way to delay bills, but there are other ways, and they also talk about the veto of the president. They want to make a point that if you have some dilatory practice available and you don't have the ability to block the bills, you still have a way to exert influence on what kind of bills are being passed. So this can be a tool that actually forces bipartisanship and compromise, even though from the outside it seems like obstruction, like completely welfare-decreasing behavior.

William Howell:

The benefits of the obstruction, just so we're clear, when I obstruct you, Viola, because you're the majority, don't come from us working out our differences on that bill and settling on some kind of compromise. The bill is the bill. The bill is fixed. The threat of delay that I can introduce, what that does is it leads you to simply abandon one bill and go to another, to say, "All right, fine, we're not going to do a comprehensive immigration reform, instead, we'll do infrastructure," because there you won't obstruct and, as a consequence, will be more productive, will be able to adopt more bills, and we'll both be made better. On net, they want to say we're better off. Their welfare analysis is such that the introduction of this tactic of limited obstruction leads to improvements on net. Does that hold or not?

Wioletta Dziuda:

So it depends. If bill number one, the one that's really loved by the majority, extremely loved by the majority, then you're going to have half of the country that's very unhappy that this extremely beneficial to them bill didn't pass. So whether on net it's a positive or negative, it depends on the details. But I guess it's a net positive in the sense that if we believe that what's good for the country is bills that appeal to everyone a little bit as opposed to bills that appeal to one party a lot and to the other one not at all, then in this sense, yes, we get bills that perhaps not everyone is super happy but everyone is okay with them as opposed to one group is very, very satisfied with the bill and another group is very unsatisfied. So, in this sense, it is a net positive, but exactly saying that when we sum up everyone's happiness and look at this in the utilitarian sense everyone is better off, that's not obviously true, and there's a cost of delay, of course, no?

Anthony Fowler:

So I have a question here, why the minority party makes a promise, "Don't pass bill number one, which I really, really dislike, and I'll let you pass bills two and three, which I dislike a little but not by that much." Why is that promise credible? Why wouldn't the minority party promise that, and then if, in fact, the majority party abandons proposal number one, then I can also obstruct proposal number two so that now I only let you pass one of the things that I don't like as opposed to two of the things I don't like, which then should make the majority party not trust me to begin with, and then that should make them just pass their preferred ... So, yeah, why would that work?

Wioletta Dziuda:

First of all, the two bills that the minority party might decide not to obstruct might actually be net positive for the party. It's probably not very likely in this highly polarized world, but one can envision that. So if those bills number two and number three are actually a net positive for the party, of course, it's credible for them to promise not to obstruct them. Second of all, you can think about some sort of credibility that you want to build as a party. You are there for the long haul. If you make a promise to Democrats that you are not going to obstruct the number two and the number three and then very quickly you turn around and you obstruct them, next time, they are not going to make this deal with you. So you are going to end up with them passing bill number one over and over again, and this deal-making is gone.

Wioletta Dziuda:

This is outside of the model, but you can think about the situation in which I want to keep my promises because I'm going to play exactly the same game over and over again. So I guess the idea is that at the beginning of the legislative session Mitch McConnell goes to Democrats and says, "Look, please do not pass, let's say, the election reform because I'm going to obstruct it, but you can pass your infrastructure bill and you can maybe raise taxes here and there, and I'm going to be fine with that. I don't like those two bills, so you might not trust me that I'm going to follow through with my promise to not obstruct those bills, but if I don't follow through, next time, you just won't make any deals with me and I want you to make deals with me, so there's a reason for you to trust me." We see these kind of mechanics playing out all over the world, not only in politics, so one can envision that these kind of deals could be made.

Anthony Fowler:

But if you're a casual observer of the Senate, it doesn't seem ... We're obviously not privy to these inside dealings that might happen in private conversations, but it doesn't seem like McConnell and Schumer have this great relationship of reciprocity where, over the years, they've built up trust and when one makes a promise, the other one knows that it's worth something. Instead, what we see are lots of things that look like a bad equilibrium where we don't trust anything [inaudible 00:23:18]. We're going to do as much as we can to obstruct and hurt you and keep you from getting what you want done. I guess the idea is an interesting one, that there could be some repeated game in which there's trust built up between the majority and minority party. It just doesn't seem to a casual observer of the Senate that that has happened in a meaningful sense.

William Howell:

To a casual observer, too, we see obstructionism happening selectively within a given Congress, and so when the dominant explanations for when do we see obstructionism are a function of levels of polarization between the parties, things that are fixed within Congresses, a nice feature of the paper is they say, "Well, we're offering an explanation for why it's selectively applied across bills and the consequences of that selective application of obstruction for agenda-setting." The hopeful thing that comes out of it, and this is their argument for why obstruction isn't so bad, is that it leads to the adoption of bills that are more bipartisan, bipartisan in the sense that there's broader support for them. So what appears to be something on the face of it that would be kind of negative for lawmaking instead redirects the majority party to pay attention to bills that are better for the country as a whole.

There's another thing that's related to the concern that Anthony articulated, which is that the way that the majority party can ensure that the minority party won't just obstruct all the way through is by claiming that they have a bill that is their most preferred bill that is awful, just abhorrent to the minority party. The minority party's expectation that the majority party will move first on this really awful thing that then leads them to say, "Okay, we're going to selectively apply our obstructionism and not just obstruct on absolutely everything," and there, too, to the extent that that is what's driving the behavior, why wouldn't the majority party at every turn signal its intention to do this crazy thing, like, "This is first up, this absolutely nutty thing," so that then the minority party backs down? "We're going to turn DC into a state. That's what we're going to do. That's first up." You're the Republican party, and you say, "Oh my God, not that." That's not entirely fanciful. That would be something the Democratic Party would love, and it would be a disaster for the Republican Party.

Wioletta Dziuda:

Yeah, I think that that's an interesting idea. There are limits to this strategy, so I don't think we should jump to the conclusion that hence we should see parties always coming up with these horrible bills for the opposition and hence we should see, actually, a lot of productivity into Congress because I think you have to come up with something that's credible, and coming up with a bill that's ready to be put up for a vote, that takes a lot of time and work. So, yeah, DC statehood, I think it's a simple bill, so that's something that you can pull out of your sleeve very quickly, but if you were to talk about election reform, for example, that's something that you have to spend time on, so it's not easy to just—

Anthony Fowler:

This does provide a rational for the House, right? There's often this puzzle. Why does the House pass so many bills that everybody knows have no chance in the Senate? Maybe this is part of the explanation. Part of the rationale is that the House is giving a menu of options to the Senate majority leaders that they can use to get a better deal. So maybe that makes it more likely that the Senate ends up actually getting the infrastructure plan that they want.

Wioletta Dziuda:

Yeah, that's interesting. I think you are spot-on. That's an interesting explanation for this kind of observation. Also, that sort of trickles into the election time, no? We might see the candidates taking more polarized stances, like proposing more polarized policies, at election time because they want to signal to the other party that, "We have strange ideas so you'd better not obstruct the less strange ideas." Yeah, yeah, yeah.

Anthony Fowler:

But it does have to be credible. It has to be something they would actually do if they could.

Wioletta Dziuda:

Yeah. But the Democratic Party has enough progressives and the Republican Party has enough extreme conservatives to, I think, be able to come up with bills that seem credible because they come up with a story that, "I have to speak to the base. I have to please everyone."

William Howell:

Hey. If you're getting a lot out of the research that we discussed on this show, there's another University of Chicago Podcast Network show that you should check out. It's called Capitalisn't. Capitalisn't uses the latest economic thinking to zero in on the ways that capitalism is and more often than not isn't working today. From the debate over how to distribute a vaccine to the morality of a wealth task, Capitalisn't clearly explains how capitalism can go wrong and what we can do about it. Listen to Capitalisn't, part of the University of Chicago Podcast Network.

Anthony Fowler:

So there are a couple interesting puzzles that are discussed in the paper. One puzzle that I think we've discussed already and you can think of as potentially being resolved by the paper is why isn't the minority party obstructing all the time. Another puzzle is why doesn't the majority party just change the rules. The Senate can set its own rules, and with just a majority vote in most cases, the Senate could essentially get rid of a lot of these obstructionist institutions that make it easier for the minority party to block things. So why doesn't the majority party just change the rules?

Wioletta Dziuda:

Christian said that even though in their models they have just two parties and parties are unitary actors, in reality, each party consists of politicians with various ideological leanings. He said let's focus on some moderates, for example, Joe Manchin. The bills that are actually super attractive to the median Democrat, to the leadership of the Democratic Party, are not necessarily the bills that Joe Manchin might like so much, so he might be happy with this compromise package of two bills that we pass at the end than with the bill that otherwise Chuck Schumer would have passed. At the same time, he's getting it without having to work hard, without having to stand up to Chuck Schumer, without having to voice his opposition to certain bills. All the work is being done by the other party, so he gets the best of both worlds.

William Howell:

There's a debate right now about whether or not we ought to get rid of the filibuster, and Joe Manchin has come out and said no. What's curious about his opposition, we're talking about a world in which there's a set of bills, if they're filibustered, they're not going to pass, they simply won't pass, but that if we switched it from a 60 vote threshold to a 50 vote, a straight majoritarian, than Joe Manchin is now pivotal. His willingness to support a bill would have implications on whether it's adopted at all, and that would seem to give him all kinds of additional influence, which then reintroduces the puzzle, which is why isn't he getting behind filibuster reform?

Anthony Fowler:

Yeah, I agree with that completely. I thought that part of the interview was really interesting. It seemed like Christian's comments were predicated on this assumption that Joe Manchin really doesn't want to have to vote against a Democratic proposal in the Senate, but it's not obvious why that's true. So maybe that's true. Maybe he really would pay a personal cost for some reason if he actively voted against something that Chuck Schumer wanted, although, even then, it's not clear that he would have to. Because if you got rid of the filibuster, what would happen?

As Will said, he would become the pivotal senator, and so Chuck Schumer would have to propose something that Joe Manchin really likes, and his opposition could even be behind closed doors, and he could tell Chuck Schumer, "This is what I want, this is what I will approve, and this is what I won't approve," and he'll get a lot of what he wants, and he'll never actually have to vote against his party leadership. So it's not obvious to me that in the short-term Joe Manchin shouldn't be one of the biggest proponents of getting rid of the filibuster. This makes him all the more powerful and influential in the Senate, and it makes me wonder if, in fact, Joe Manchin does have principled objections to getting rid of the filibuster that aren't about his short-term influence in policy-making today.

Wioletta Dziuda:

I think that it is not obvious, at least theoretically, that Joe Manchin has more power as a pivotal legislator than under the filibuster. So let me focus on the 60 senators requirement. If Joe Manchin is the pivotal legislator, so if we get rid of the filibuster, there's timing. So, first, the bill is put up for a vote, and then he has to make a decision to vote yes or no, so he can go and threaten his veto or he won't, but, at the end of the day, as long as the bill makes him slightly better off or his constituents slightly better off than the status quo, he's going to vote yes, okay?

So he's going to get a bill that makes him better off but not an extremely valuable bill for him, not a bill that actually maximizes the utility of his constituencies, while if the pivotal senator is somewhere in the Republican Party, now any bill that's put up for a vote has to make that senator on that slightly better off than under the status quo. The bill that makes that senator slightly better off than the status quo might actually make Joe Manchin quite much better off than the status quo. So if you think about this model, if you start to build this kind of model in your mind, you might actually see that being pivotal is not necessarily making you get the bills that you want. It's just making you get the bills that are making you slightly happier than what you are right now and having someone even more extreme than you pivotal makes you get better bills. I think that might be what makes Joe Manchin want to stick to the filibuster.

William Howell:

So if I could breathe some life back into this notion that his pivotality might play to his advantage, I get your point, Wiola.

Wioletta Dziuda:

I killed it already. There's no way to breathe it—

William Howell:

I know, you killed it. I want to resuscitate it. I want to resuscitate it, which is that we have some empirical evidence that suggests that distributive outlays are increasing in legislators' proximity to the median voter within the median legislator. So Dan Alexander, Chris Berry, and I have a paper from a few years ago in which we looked expressly at who's able to extract more distributive outlays. Think pork. So this is not about the content of the bill so much as it is to do with the bridges and community centers and the redoing of roads in your home district. Your ability to get that stuff, if you moderate, we see empirically that you get more of that stuff than if you are ideologically more extreme. To the extent that all you need is a majoritarian vote and you are the one that gets you up to 50%, you should be in a prime position to extract this stuff. At least empirically, we see that in the data, that those are the ones who get the most.

Anthony Fowler:

He gets bills that he just barely prefers over the status quo, so maybe that's not as good for him, but then in return West Virginia has the best interstate highway system in the whole country and lots of federal education spending. He's getting lots of other stuff because Chuck Schumer knows that he has to buy off Joe Manchin. That's the story.

Wioletta Dziuda:

So I think I have to respond ... Well, so, first of all, yes, it seems like there's a zombie in the room right now. You've managed to breathe some air into this dead body, but—

William Howell:

Oh, good. Okay. You're not going to just, yeah, chop off its head immediately. It lives.

Wioletta Dziuda:

I think two things. I think if there is a lot of room for targeted vote-buying, then, yes, it might be that under the filibuster you just make Joe Manchin indifferent when it comes to just the main content of the bill and then you buy these extra Republicans using pork, and had we abandoned the filibuster, you could buy Manchin using pork. But you would still leave him indifferent. You would still make him just slightly better off. But I'm guessing what would happen with 60%, if you look at the Senate with a 60% majority, you would get that, yes, the people that are Republicans get more pork, but if you could measure somehow the satisfaction from the non-pork part of the bill, Joe Manchin would still get some benefit from the fact that—

William Howell:

Could be, right? And we don't know if one offsets the other or—

Wioletta Dziuda:

Yeah. So—

Anthony Fowler:

It's weird. Wiola, your point stands, obviously, but it's not obvious which way ... Theoretically, it's ambiguous which direction it goes. Is Joe Manchin better off being the pivotal senator or having it be the 60th senator? It could go either way. The 60th senator is still a pretty conservative Republican that Joe Manchin disagrees with a lot more than he disagrees with Chuck Schumer.

Wioletta Dziuda:

Yes. Yes.

Anthony Fowler:

So there are going to be a lot of things under the filibuster rule that Joe Manchin really likes that just can't get passed that obviously could get passed if he was pivotal, and then there's going to be other things, as you say, where he's actually going to get a little bit more of what he wants, and so it's going to cut in both directions. We don't know for sure which way it goes.

So how do we feel about the filibuster? You've actually, in writing, said that maybe we should give the president and the majority party more authority to enact what they want and to do so more quickly. Do you still feel that way?

William Howell:

I do still feel that way. The biggest problem with the filibuster is that it renders, effectively, in this world of hyper-polarization, the legislative process all but broken. It's just impossible for either party to do much of anything, and so, instead, what they do is they cram everything they possibly can through reconciliation. We get these occasional massive omnibus bills that are incoherent and larded up, and, meanwhile, the ability of parties to take policy by policy one at a time and move on them is rendered defunct because neither party's willing to come around and compromise with the other, and it's a problem. I will say I think the concerns about policy volatility are real if you got rid of the filibuster.

Another thing, to the extent that you're worried about majoritarianism, that is the extent to which the policies that are adopted reflect the interest of the country as a whole, you can imagine scenarios, and we've talked about this on previous episodes, how having a majority of the House and Senate does not mean you have necessarily a majority of the country as a whole. You can imagine scenarios under which 35, 40% of the American public gets behind a party that then captures a majority of both seats, excuse me, both chambers that then, in the absence of a filibuster, pushes through all kinds of legislation, that that on representation grounds may be problematic. But when you think about just the capacity of us to legislate, actually to make progress on the challenges that we as a country face, the filibuster is profoundly problematic, and I don't find ... The hope that springs from this paper that says it leads to more consensus-building I don't think speaks to this basic issue, precisely because it's about obstruction, it's not about just delay.

Anthony Fowler:

So I come out differently than you do, although I'm actually going to make reference to some of the same arguments that you do. If I had to guess on that, I kind of like the filibuster, and I'd like to keep it. One of the biggest reasons that I'd like to keep it, at least in our current climate, is because of polarization. Given how far the typical Democratic member of Congress and the typical Republican member of Congress is from the median voter in America, I don't want to give too much power to either party. I don't think that leads to very good representation. I don't think that's going to be something that the majority of Americans are going to like.

So if you allow a simple majority to do whatever they want, you're going to get policy that's really far from the median voter. If you require consensus, if you require 60 senators to pass something, of course, it's going to be much harder to pass something, but when you do pass something, it's going to be a lot closer to what the public actually wants. I end up, I think, being sympathetic to the filibuster precisely because there is so much political polarization in Washington. Now, do I wish there wasn't so much polarization? Do I wish that, district by district, the member of Congress was much closer to the preferences of the median voter in that district? Yes. To address the problems that you're talking about, Will, I'd want to go there. I'd want to get to that root of the problem.

Wioletta Dziuda:

I'm going to come out against the filibuster, and now I'm going to use the same arguments that Anthony's using but in reverse.

William Howell:

Oh, I love it.

Wioletta Dziuda:

So let's see where this is taking us. I'm not sure that polarization of the political parties is truly an ideological polarization, or perhaps it might be endogenous to the institutions that we have. I myself have a paper that basically shows that the more super majoritarian requirements you have, the more polarized voting you might get in the Senate, even though ideologically the parties are not so far apart. You can tell other stories. You can say because we have the filibuster, because we can't pass many policies, it might be optimal for us to just take more extreme positions. If we knew that, actually, our positions would pass, we would be a little bit more moderate. I think there's a story to be told there, too.

William Howell:

I agree.

Anthony Fowler:

That's interesting. I think that's an interesting argument. Of course, you see just as much polarization in the House as you see in the Senate, just as much polarization in state legislatures that don't have the same kinds of super majoritarian rules, so I'm not so sure.

William Howell:

The image that I have in mind is the two kids in middle school who are taunting each other, and they're being held back, right? Somebody's holding them back. "Oh, I'm going to rip your head off, and I'm going to tear you apart." Then we say, "Should we let them go?" No, don't you dare let them go because they've just threatened to tear each other apart, and wouldn't that be awful? The answer is no, no, no, they're saying all those things precisely because they aren't going to have to deliver, and if they were let go, they would moderate. But all these dogs in front of my house, they come and gather. When you keep them on a leash, they just go absolutely bonkers, but you let them go, they work out their differences.

Anthony Fowler:

You're willing to take that risk and let the dogs go, and I'm saying let's not let the dogs go, just in case they kill each other.

William Howell:

Yes. Let them go.

Wioletta Dziuda:

But, again, I want to go back to this issue of accountability. So suppose you are right, there's this huge polarization, that it's something really ideological, and when we get rid of the filibuster, each party is just going to implement very extreme policies that benefit the party and that don't necessarily benefit the voter. But at least we give the voter a say in whom they want to elect and how they want to react to that. Once we get rid of the filibuster, I'm going to get something that's there, and now it's up to me, depending on whom I vote for, what policy swings are going to materialize.

William Howell:

Well, what's your bottom line? How do you come out, not just with regards to the filibuster but with regards to this paper and what we've learned from it?

Anthony Fowler:

I liked the paper. I think it made me think about things that I had not thought about before, and it made me think that maybe these dilatory tactics are something important that we should spend more time thinking about in Congress. I don't think these considerations about delay capture the heart of our current political debate. I think much more of our current political debate is about can Joe Biden and Chuck Schumer and Nancy Pelosi propose something that 10 Republicans are going to like? I think that's a much bigger dilemma for them right now than dealing with these dilatory tactics that might be used by Republicans. But I think both are interesting, both are important. I learned a lot from the paper.

Wioletta Dziuda:

Yes. I think I'm going to second a lot of what you said. What I like about the paper is that it made me think about the positive aspects of the filibuster that I haven't appreciated enough. Having said that, I'm still negative on the filibuster overall. I think all these positive aspects are either trumped by the negative aspects or don't materialize in real life, for example, I don't see so many compromise bills being passed in the Congress. So I'm still—

Anthony Fowler:

So just imagine how many fewer there would be if you get rid of the filibuster. Okay, sorry. I shouldn't interrupt your bottom line.

Wioletta Dziuda:

I'm willing to take responsibility for that and live through that time.

Anthony Fowler:

Look, I think we're all coming out to the same spot, which is that this paper is interesting and smart, and it productively points our attention to how limited obstruction has the potential, at least, to shift the agenda and possibly to shift the agenda and leads to the adoption of more bipartisan or consensual lawmaking. That's to the good. But as you both point out, what's at stake in this present political moment is not whether or not bills will take longer to adopt. Rather, it's whether or not they'll be adopted at all.

It's not clear that the lessons in the model carry over to this world, and, moreover, I think when you look at the internal dynamics of the model, again, what's key for the majority party is that it can say, "My first choice is this thing that I can definitely deliver on, and if you, minority party, really don't like it, well, then you're going to scale back your opposition, and that's when you'll be more limited in your obstructionist tactics." But in a world in which the minority party can simply kill every and anything because you can't get, in today's Senate, 10 Republicans, well, then it's not clear that that hopeful scenario is going to come to fruition and that we should generally see widespread universal opposition. I think that is largely what we do see, except on the subset of bills where there's already prior agreement.

William Howell:

Thanks for listening to Not Another Politics podcast.

Wioletta Dziuda:

Our show is a podcast from the Harris School of Public Policy, and is produced by Matt Hodapp. Thanks for listening.