
Is the filibuster less powerful than many people believe?
Editor’s note: The following is an excerpt from Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate.
In many other ways — including the issues on its agenda and the demographic composition of its membership — the U.S. Senate at the beginning of the twenty-first century would be unrecognizable to a member of the body at the end of the nineteenth. The notion that simple majorities do not rule, however, is a rare point of consensus across both time and party. Our understanding of the Senate as a slower-moving, more deliberate body than the House of Representatives dates to the Constitutional Convention, where James Madison characterized the chamber as proceeding with “more coolness . . . [and] more system.” The chamber lost its ability to end debate with simple majority vote in 1806, and it took nearly a century of increasing obstruction before the cloture rule provided a supermajority solution, in 1917. Over the course of the twentieth century, the filibuster became a routine procedural tool that is often blamed for the gridlock and dysfunction that characterizes our contemporary political system.
This ability of a minority to obstruct legislative progress in the Senate permeates the understanding of deliberation and activity in Congress for academics, journalists, and ordinary citizens alike. From a scholarly perspective, the filibuster sits at the center of Keith Krehbiel’s well-known account of lawmaking in the separation-of-powers system. Work on gridlock and legislative productivity and executive nominations has similarly embraced the notion that the filibuster dictates what the Senate, and by extension, the House and the president, can achieve.
Coverage of the Senate in the popular press now also takes for granted the notion that virtually all legislative action requires the support of three-fifths of the Senate. Discussions of specific bills are often framed as needing sixty votes for passage; in reference to the 2008 auto bailout, for example, the New York Times’s David Herszenhorn wrote that “passing any legislation to aid the auto companies would require 60 votes in the Senate.” So ingrained is the effect of the filibuster rule that journalists regularly describe measures that obtain more than fifty but fewer than sixty votes as failing, without additional discussion of why and how something that has majority support does not pass the chamber.
There exists, however, a set of procedures in the Senate that complicates this account, which is so prevalent among Congress watchers of all stripes. Over the past nearly fifty years, Congress has repeatedly included in statutory law provisions that I call “majoritarian exceptions.” By reallocating power within the chamber in three different ways, these special procedures empower simple majorities and make operations of the Senate more majoritarian. Some of my work on these procedures explores them only in the context of broader arguments and not as an independent object of interest. In other instances, the procedures are explored in depth but only as specific, substantive case studies or as a way of explaining a particular set of legislative outcomes. In my new book, I unify the narrow and the broad by analyzing systematically the creation, use, and policy consequences of these special procedures in the Senate.
In this new book, Exceptions to the Rule (Brookings Institution Press, 2017), I explore at some length what constitutes a majoritarian exception, that is, a provision included in statutory law that prevents some future piece of legislation from being filibustered on the floor of the Senate. A careful review of the historical record has identified 161 such provisions adopted between the 91st and 113th Congresses (1969–2014). They cover a wide range of policy areas, including trade (such as the multiple provisions providing the president with fast-track trade authority); foreign policy (including rules for the imposition or waiver of international sanctions); defense matters (such as procedures for closing military bases); the federal budget (including the process for developing and passing the congressional budget resolution); and health care (such as the provisions governing the adoption of proposed cuts in Medicare spending).
The logic as to why majoritarian exceptions matter is simple: by eliminating the possibility of a filibuster, they ease the process of building a coalition in favor of a particular piece of legislation. Because majoritarian exceptions apply only in specific circumstances, however, even close observers of Congress tend to think of each set of procedures in isolation, frequently describing even the best known examples, such as budget reconciliation, as “arcane.” By providing a systematic look at the exceptions together, as a single class of procedures, however, I am able to demonstrate how majoritarian exceptions represent an important procedural dynamic in the Senate in their own right.

Learn more and order Exceptions to the Rule.
