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I think this article raises a valid point. It also raises an interesting question. (thread) https://twitter.com/JulianWaller/status/1295498398171369474
The filibuster is indeed not an (absolute) veto - a determined majority could ultimately bypass the objections of 41 Senators. It is, instead, a tool of delay - in other words, a suspensory veto for an undefined (but not infinite) period of time, which can be reduced to zero 1/
if 60 Senators agree to end debate. Where else do we encounter suspensive vetoes? They are quite common in parliamentary and semi-presidential bicameral assemblies, where the upper house usually has a 'veto' which the lower house can override by majority vote 2/
after a certain period has elapsed, sometimes with some requirement for negotiations in a conciliation committee (examples include France, Poland, Spain, and Jamaica). Unlike in the case of the filibuster in the US, these upper houses are not seen as much of an obstacle 3/
to policymaking, even when the upper house is controlled by opposition parties. This is not to say they have no impact at all. Sometimes they can get in the way of a government's plans, and from time to time they can even force the government to make important concessions. 4/
As Tsebelis & Money (1997) show, they are by far most effective at doing this when the legislation is time-sensitive, or for whatever other reason the govt is in a hurry to pass it; in that case, any delay could be very costly, so it may be worth making concessions to ensure 5/
timely enactment. In general however, I think upper houses (again, even when opposition-controlled) with suspensory vetoes are not blamed for policymaking failures nearly as often as the filibuster is in the US. 6/
So this raises a question: why is the filibuster perceived as so much greater an obstacle in the US than the upper houses I've mentioned, even though they are technically very similar in their veto player role (wielding a suspensory veto)? 7/
One obvious answer might be the extent of polarisation in the US in comparison to those other countries. Another might be the fact that in those countries, the amount of delay posed is usually known ahead of time (often being specified in constitutions or standing orders) 8/
In any case, it may be more predictable than the length of a filibuster. However, I suspect a more important reason is that (an actual) filibuster does not just cost time, it also costs time on the floor of the Senate. In a bicameral system with a suspensive upper house veto, 9/
not just the lower house, but BOTH houses can continue processing other business while the govt waits out the clock until they can override the upper house's veto. This is not the case in the US Senate, where if an actual filibuster is undertaken, the Senate 10/
can not deal with any other business (at least in the plenary) until it finishes dealing with the proposal (or nominee) at hand. Given the Senate is an extremely busy assembly, this plenary time is quite precious, 11/
& perhaps this makes almost any Senate majority strapped for time, even if the proposal itself is not time-sensitive. The two-track rule mentioned in the article is obvious evidence for this idea. 12/
Parliamentary obstruction has caused similar problems in many other legislatures, sometimes even causing constitutional crises (Koß 2018 is highly recommended reading on this topic), probably for the same reason. 13/
I would be cautious, therefore, to say something like "the filibuster *merely* causes delay". It forces a majority to put off anything else that requires plenary time. Instead, a rule empowering the minority to merely delay would look something like this: 14/
"A bill or nominee that got less than 60 votes on the final vote is not held to have been approved unless, on another vote taken 30 days later, passes again by majority vote". This would mean delay, but the plenary time until the extra vote could be used for other business. 15/
Does either kind of rule add something to the deliberation or consensus-building of the Senate? Maybe. I'm not sure. But even if it did, it still seems to me the American legislative process includes more than enough hurdles as it is. Probably too many. /END
