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

Abstract

The filibuster has effectively become a supermajority requirement for all lawmaking in the Senate, an effect worsened by ill-conceived attempts at its reform. Once an obscure budgetary procedure, reconciliation is now the primary mechanism of avoiding filibusters, and so it is now the means by which the most significant pieces of legislation in recent years have been passed. The effectiveness of mechanisms of restraining reconciliation — particularly the Byrd rule — as well as constraints on more meaningful filibuster reform all hinge on who has supervisory power over Senate rules. Ultimately, this rests not in the courts or the Parliamentarian but in the Senate itself. The battle between majoritarian and minoritarian power in the Senate, and so over the nature of legislation creation in Congress, depends upon individual incentives and institutional norms. We show that those incentives are structured towards minoritarian power, due to particularism, institutionalized risk aversion, and path dependence. Consequently, filibuster reform is likely to be continually frustrated, as the most recent skirmish illustrated. Only through the largely accidental change proffered by reconciliation has majoritarian power resurfaced, and yet still the pull of minoritarian influence continues to reassert itself.