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Publicly Available Published by De Gruyter January 14, 2022

One Obstacle among Many: The Filibuster and Majority Party Agendas

James M. Curry and Frances E. Lee
From the journal The Forum

Abstract

In today’s hyper-partisan environment, scholars and commentators contend that the filibuster poses a nearly insuperable obstacle to a Senate majority party’s agenda, limiting Congress’s output to non-controversial measures. Drawing on data about congressional majority party agenda priorities from 1985 to 2020 we identify when and how majority party legislative efforts fell short of success and take stock of the degree to which the filibuster was the primary culprit. Not surprisingly, our data confirm that the filibuster is a significant problem for majority party agendas. But an even more common cause of failure is the majority party’s inability to agree among themselves. Despite increased voting cohesion generally, parties in the polarized era still routinely struggle to bridge their own internal divides.

Abolition of the filibuster has recently emerged as a cause célèbre on the political left. By summer 2021, a clear majority of Democratic Party senators had publicly called for eliminating or reforming the procedure.[1] If the filibuster remains “there will be no progress on any agenda,”[2] they said, calling the procedure “anti-democratic.”[3] Democrats inside and outside Congress believe that the filibuster stymied the party’s agenda during the Obama years and will continue to do so unless eliminated.[4] Calls for the procedure’s reform and elimination have taken on a moral tone, with the filibuster alleged as a racist institution[5] and its elimination as necessary for the survival of democracy.[6]

Of course, not long ago it was Senate Republicans leading the effort to alter or eliminate the Senate filibuster. During the George W. Bush administration, Republicans repeatedly threatened to the use the “nuclear option” to end filibusters of judicial nominations.[7] In the end, it was Senate Democrats who “went nuclear” in 2013 in response to Republican obstruction of President Obama’s judicial appointments, thereby empowering a simple Senate majority to end debate to confirm all presidential nominations below the Supreme Court. In 2017, Republicans extended majority cloture to Supreme Court nominees.[8] Many activists now would like to see the same procedural maneuver applied to curb the legislative filibuster. Clearly, the Senate filibuster is coming under pressure as parties seek to deliver on their promises in a polarized era.

Since the 1990s, scholars have placed more emphasis on the Senate’s filibuster and cloture rules as an obstacle to majority parties. Krehbiel (1998) famously classifies the filibuster as one of the most important institutional constraints in the U.S. political system. Binder (2003) hones in on the Senate filibuster as one of the most influential factors in understanding the dynamics of legislative gridlock. Although congressional procedures are thought to empower cohesive majority parties, especially during the contemporary party polarized era (e.g., Aldrich and Rohde 2000; Cox and McCubbins 2005), the filibuster stands as a stark exception. In a closely party competitive context, a Senate majority party rarely holds 60 seats. As such, a 60-vote threshold for cloture empowers minority party senators to block the majority party’s agenda, even when a single party has majority control of U.S. national government. Mayhew (2008, 274) questions whether “the Senate of past generations had any anti-majoritarian barrier as concrete, as decisive, or as consequential as today’s rule of 60.”

Although there’s no doubt that the filibuster obstructs partisan lawmaking, the effect of the filibuster on the majority party’s policy ambitions has not received much systematic study. Scholars have carefully documented the evolution (Koger 2010) and increasing use of the filibuster (Binder and Smith 1996; Koger 2010; Sinclair 2016; Smith 2014). They have demonstrated that the filibuster contributes to legislative stalemate generally (Binder 2003, 2014). But researchers have not assessed the degree to which the filibuster blocks congressional majority parties from accomplishing their legislative priorities. How wide ranging are the effects of the filibuster on majority party agendas? How important is the filibuster as an obstacle relative to all the other obstacles facing parties in the U.S. political system?

There are, after all, many other obstacles aside from the filibuster that get in the way of congressional majority parties accomplishing their policy goals. First, divided government is the normal state of affairs during the polarized era, with different parties controlling Congress and the presidency more than 70 percent of the time in the post-1980 period. A congressional majority party confronting an opposing party president, or an opposition-controlled chamber on the other side of the Capitol, cannot aspire to legislate its preferences without striking a bipartisan deal of some kind, either to get a presidential signature or (far less likely) to override a presidential veto. Second, given the different constituencies and electoral calendars across the House and Senate, the two chambers can fail to reach agreement on policy even when they are controlled by the same party. Third, even within one congressional chamber, majority parties can still struggle to reach agreement internally. Even though today’s parties are more ideologically homogenous than they were for most of the 20th century, internal dissent nevertheless hamstrings congressional parties. The question we seek to answer here is: how important is the Senate filibuster as a constraint on majority parties relative to all the other obstacles that get in parties’ way?

Drawing on data on congressional majority party agenda priorities from 1985 to 2020 (Curry and Lee 2020a) we are able offer some answers to this question. The Limits of Party focuses on how polarization has and has not changed national lawmaking generally, with a particular focus on documenting the persistence of bipartisanship in enacting coalitions. Here we exploit the data collected for the book, updated to include cases that occurred since the book’s publication, in order to shed light on the role of the filibuster as an obstacle to majority party agenda success. Drawing on our legislative histories of majority party agendas across the past three and a half decades, we identify when and how majority party legislative efforts fell short of success and take stock of the degree to which the filibuster was the primary culprit.

We find that while the filibuster accounts for a significant share of the failures majority parties have experienced on their policy agendas since the Reagan years, other factors, especially persistent intra-party disagreements on policy, are a much bigger impediment to party government. We also do not find evidence that the filibuster has obstructed an increased share of majority party agenda items since the 1980s, even as party polarization has increased. Ultimately, we conclude that the filibuster is just one of several features of the American political system that undermine one-party rule. Those who pin their hopes for reform and change on the elimination of the filibuster should temper their expectations. Abolishing the filibuster would enable a party with unified government to pass some agenda items that would otherwise fail due to minority party obstruction, but it is unlikely to have as much of an effect as is hoped for or expected.

1 Majority Party Power and the Filibuster

Political scholars and reformers have long viewed the American political system as broadly hostile to party government and party aspirations. The geographic system of electing representatives and senators from separate and diverse constituencies promotes the creation of individualistic campaign messages and policy priorities, rather than party discipline (Carson et al. 2010; Mayhew 1974). The Constitution’s separation of powers adds to parties’ challenges. Presidential systems like the United States create discordant leadership within each party, as presidents and congressional party leaders at times pull legislators in disparate directions (Burns 1963; Samuels and Shugart 2010). Divided party control of government routinely forces the major parties into power sharing arrangements. But, regardless of unified or divided party control, large and bipartisan coalitions have historically been necessary to pass legislation (Krehbiel 1998; Mayhew 2005). Given the many other obstacles standing in parties’ way, the filibuster did not loom particularly large for scholars through most of the 20th century.

The filibuster has become a more central focus for both scholars and reformers in recent years, with the emergence of more internally unified parties in Washington. Throughout the 20th century, both parties encompassed such deep internal factions that building unity behind a party program was often simply untenable (Brady and Bullock 1980; Polsby 2004; Sundquist 1968). The filibuster was a much less salient constraint when parties struggled to even formulate a policy agenda and party leaders exercised such limited control over the legislative process (Cooper and Brady 1981). As congressional parties sorted and polarized (McCarty 2019; McCarty, Poole, and Rosenthal 2006; Theriault 2008), they began to routinely put forward programmatic agendas laying out their policy goals. On the occasions when parties win unified party control of governing institutions today, they aspire to carry through on those agendas.

The contemporary Congress is better organized to empower parties and party leaders to advance their policy agendas. Party leaders now take the lead on major legislative efforts (Curry and Lee 2020a; Sinclair 2016; Tiefer 2016; Wallner 2013). They set the agenda (Harbridge 2015), develop and directly negotiate policy (Curry 2015; Hanson 2014), and often bypass traditional committee-led stages of the legislative process (Bendix 2016; Curry and Lee 2000b; Howard and Owens 2020). Prominent theories of party power in Congress have argued that this combination of increased party polarization and procedural power better enables parties to achieve their legislative goals (Aldrich and Rohde 2000; Rohde 1991). While resting on a different set of assumptions, Cox and McCubbins (2005) likewise contend that majority parties provide their leaders with substantial power so as to yield accomplishments that members can tout in future election campaigns, and “… the better the majority party’s control of such powers is, the more able will it be to fashion a favorable record” (Cox and McCubbins 2005, 7).

Indeed, while most congressional procedures are believed to function to better facilitate majority party control in today’s Congress, the filibuster stands as an exception. Rather than empowering the majority party, the Senate’s filibuster and cloture rules empower minority parties under conditions of party polarization. With 60 votes needed to end debate on nearly all legislation,[9] a determined and unified minority party is typically able to obstruct legislative action.[10]

Scholars have documented how Senate obstruction has become routine (Koger 2010). A rising Senate workload starting in the latter half of the twentieth century made it easier for senators to exploit Senate rules to object and obstruct (Binder and Smith 1996; Oppenheimer 1985; Sinclair 1989). The result, Smith (2014) argues, is an “obstruct-and-restrict syndrome” where Senate minority parties block the majority’s legislative efforts and the majority, in turn, restricts the minority’s opportunities for legislative influence. In such a context, the Senate can be understood as a systematic obstacle standing in the way of democratic aspirations and accountability (Wirls 2021).

This kind of thinking about the consequences of the filibuster has permeated public and journalistic narratives in recent years. Political commentators and journalists frequently cite the filibuster as the primary cause of gridlock in Washington.[11] The filibuster is now seen as the main impediment to party government in Washington, stopping otherwise strong and unified majority parties from achieving their policy goals, and instead empowering minority parties in the policymaking process.[12]

Despite all these clear expectations about the filibuster, there has been little evaluation of its effects on the fate of majority parties’ policy agendas. Scholars have not systematically assessed the extent to which the Senate filibuster impedes majority parties’ efforts to enact their policy agendas, or whether it has become a greater impediment in recent years. Similarly, there has been little effort to assess the relative effects of the filibuster as a barrier to majority party lawmaking against other factors, including intra-party disunity, presidential vetoes, bicameralism, and other matters. A full accounting requires both an assessment of the filibuster’s direct effect as well as its significance relative to the many other obstacles majority parties face in the American political system.

2 Data on Party Agendas

In order to gauge the filibuster’s role in congressional majority party success and failure, we compiled a list of each majority party’s agenda priorities during each Congress between 1985 and 2020 (the 99th–116th congresses). This list reflects what each congressional majority hoped to accomplish during each two-year legislative session. In years with unified control of the House and Senate, we collect data on just the one party’s priorities. In years with split control, we collect data on both parties’ priorities.

On this list, we included all the bills inserted into the slots reserved for the Speaker of the House and the Senate Majority Leader.[13] In addition, we read the opening speeches made by the leader of the majority party in each chamber at the start of each Congress,[14] identifying any policy issues or items that leaders indicated they hoped or planned to address in the coming Congress. Policy proposals introduced in either or both of these settings were recorded as agenda items.[15] A fuller accounting of our method is included in Curry and Lee (2020a).

This approach yielded a list of 284 majority party agenda items over the period. Figure 1 displays the number of agenda items per Congress, and the percent of items on which the majority party failed.[16] The number of items ranges from 11 to 24 items, with the average around 16.[17] As is evident here, party agendas are not getting longer. There is also no difference between Republicans and Democrats in the number of agenda items they put forward when they hold congressional majorities.[18]

Figure 1: 
Number of majority party agenda items by congress, 1985–2020.

Figure 1:

Number of majority party agenda items by congress, 1985–2020.

For each agenda item, we then constructed a legislative history. Our main goal was to assess the majority party’s success in achieving its policy goals. For each item identified during the period, we coded the outcome obtained into one of three categories:

  1. the majority got most of what it wanted with a new law(s) enacted achieving most of what the majority set out to achieve;

  2. the majority got some of what it wanted, passing a new law(s) falling short of the party’s goals or requiring substantial compromise; or

  3. the majority got none of what it wanted, failing to enact any new law on its policy priority.

We relied on journalistic coverage of each item to do this coding, drawing primarily on coverage in CQ Magazine and on articles providing an overview of the accomplishments of each congress in various editions of the CQ Almanac. Occasionally, we also drew upon other periodicals such as Roll Call, The Hill, and the Washington Post. It was not difficult to differentiate between laws widely regarded as a “win” for the majority party and laws where the majority party had to drop key priorities or make major concessions.

The data on “failures” in Figure 1 reflect items on which the majority achieved none of what it set out to achieve. As shown, rates of failure vary from congress to congress, but appear to be increasing slightly over time, and that increase is statistically significant. For each case of majority party agenda failure, we then researched the legislative history of the initiative to ascertain when and where the legislative drive came to a halt. Each failure was coded into the following six categories:

  1. Senate’s 60-vote threshold (filibuster). The bill is actively filibustered or the majority party notes at some point that they cannot bring it up for consideration because they do not expect to have 60 votes to break a filibuster.

  2. Presidential veto. The bill is either vetoed or the president’s veto threat appeared to stop action.

  3. One chamber passes a bill but the other does not (for reasons other than a filibuster).

  4. No formal action occurs. A bill might be unveiled or introduced, but it is not reported by a committee in either chamber.

  5. Committees in one or both chambers report a bill, but no floor action occurs.

  6. The House and Senate pass different bills but cannot reconcile the differences.

Two research assistants worked separately to code each case of failure. In a large majority of cases, there was no ambiguity about where and how bills failed. On the roughly one quarter of bills on which coders initially came to different conclusions, further research was conducted, and the case was discussed together as a group to reach a final coding decision.[19]

3 The Filibuster and Majority Party Failure

In order to take stock of the filibuster’s impact on majority party failure, we focus separately on years of unified and divided party government. During periods of divided government, the filibuster is one of just several ways an opposition party can block the majority’s legislative efforts. For instance, a party that is a minority in one chamber may hold a majority in the other and so can block legislation without resorting to a filibuster. Or, it may control the White House and can stymie legislation with the president’s veto. During unified government, in contrast, a Senate filibuster is often the only veto point that the minority party controls.

Before seeking to gauge the effect of the filibuster, below are some basic descriptive statistics on the overall performance of congressional majority parties in enacting their legislative agendas. Figure 2 displays the outcomes of the majority party agenda items (n = 69) in the study’s congresses with unified government, meaning the congresses with unified control under Bill Clinton, George W. Bush, Barack Obama, and Donald Trump.

Figure 2: 
Legislative outcomes of majority party agenda items in unified government.

Figure 2:

Legislative outcomes of majority party agenda items in unified government.

As is evident here, legislative failure is the single most likely outcome for majority party agenda priorities in every congress with unified government. Across these congresses, parties failed to enact any legislation on 43% of their agenda items. By contrast, they managed to achieve the most favorable outcome on only about one-third of their agenda items. These “most of what they want” outcomes are those covered in the press as clear “wins” for the majority party, such as the Tax Cuts and Jobs Act (2017), and the Affordable Care Act (2010). On the remaining 22% of their agenda items, parties in unified government managed to get some of what they wanted, but the outcome fell well short of a clear win. A “some of what they want” outcome refers to agenda items where a majority party succeeds in passing a law but was unable to achieve major partisan objectives. In the 115th Congress, for example, Republicans wanted to pass an agriculture bill that imposed new work requirements on beneficiaries of the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps). After considerable contention on the issue, Republicans eventually passed a Farm Bill in 2018, but they were unable to impose any new work restrictions on SNAP eligibility. In other words, “some” outcomes entail clear disappointments for the majority party.

To contextualize these data on agenda failure in unified government, Figure 3 compares the agenda outcomes achieved by congressional majority parties in unified (n = 69) and divided government (n = 215). Here, we find surprisingly modest differences. In unified government, the failure rate is 43%, and in divided government it is 51%. The difference is not statistically significant. Overall, majority party failure was the modal outcome regardless of unified or divided party control.

Figure 3: 
Outcomes of majority party agenda items, by party control.

Figure 3:

Outcomes of majority party agenda items, by party control.

Meanwhile, parties actually do better at getting “some of what they want” on their agenda items in divided government than in unified government. Majority parties reach a compromise outcome on 34% of their agenda items in divided government as opposed to on 22% of their agenda items in unified government. Negotiated outcomes may be more likely in divided government because the parties are able to bargain on more equal footing when they each control at least one institution of national government. This higher likelihood of partial majority party successes in divided government is statistically significant (p < 0.05).

Not surprisingly, majority parties are more than twice as likely to achieve a clear win on their agenda priorities in unified government than in divided government. Majority parties achieve most of what they want on 35% of their agenda items in unified government, as opposed to on just 15% of their agenda items in divided government. This difference is also statistically significant (p < 0.01).

As is evident from the above, majority parties routinely fail on a significant share of their policy agendas, regardless of the distribution of party power across governing institutions. In fact, even in unified government majority parties are more likely to fail outright on an agenda item than to achieve a clear win. How important is the filibuster in accounting for these patterns?

It is challenging to offer a definitive causal account of the effect of institutional rules such as the filibuster because legislative activity is continually shaped by anticipation. A filibuster does not have to actually occur in order for it to have had an effect on strategic behavior. Nevertheless, in constructing our legislative histories we are able to identify with reasonable certainty where in the congressional process initiatives came to an end (e.g., at the committee stage, on the House or Senate floor, at bicameral reconciliation). We, of course, coded agenda items as failing due to the Senate’s 60-vote threshold when they were halted due to a failed cloture vote. But we also coded agenda items as failing due to the filibuster when there was evidence in news coverage that a majority party opted not to proceed with an effort because of anticipated problems with the filibuster. In other words, we employed an expansive coding that covers not just cases where cloture could not be obtained but also cases where the majority party declined to move forward due to its belief that it would be unable to muster the necessary 60 votes in the Senate.[20]

Not surprisingly, our data confirm that the filibuster is a major obstacle for a majority party’s policy priorities, especially during unified government. Figure 4 displays where majority party agenda items failed in the legislative process for both the unified and divided governments in our study. Just over 33% of all majority party agenda failures in unified government were traceable to problems with the Senate filibuster. The Senate’s 60-vote threshold was also a frequent cause of failure in divided government, for which it accounted for just under one-fifth of all majority party agenda failures. Among these failures due to filibuster problems were the efforts of Republicans to restrict abortion in the 114th (2015–16) and the 109th (2005–6) congresses, of Democrats to raise the minimum wage in the 113th Congress (2013–14), of Democrats to pass immigration reform in the 110th Congress (2007–8); of Republicans to limit medical malpractice liability in the 108th Congress (2003–04), and of Republicans to pass a prescription drug bill in the 107th Congress (2001–02). This list could be expanded since most congresses in the study featured at least one majority party agenda item blocked by the Senate filibuster.

Figure 4: 
How majority party agenda items fail, by party control.

Figure 4:

How majority party agenda items fail, by party control.

However, while the filibuster is indeed a barrier, most majority party agenda failures are due to other causes. Indeed, the most striking finding in our data is that majority parties, whether facing unified or divided government, are more likely to fail on their agenda items due to disagreements among members of the majority party, rather than due to veto points controlled by the opposition. Using our data, we also coded each agenda failures as happening due to internal party disagreements or due to veto points controlled by the opposition party, such as the filibuster.[21]

During years of unified government, while one-third of agenda failures occurred due to the filibuster, the other two-thirds occurred due to internal party disagreements. These include the 23% of cases where one chamber passed a bill, but the other chamber did not for reasons other than the filibuster, and the 23% of items on which no action was taken on an item whatsoever.[22] It also included the 13% of items on which a committee reported a bill that was never scheduled for floor action and the 7% of cases on which both House and Senate succeed in passing a bill on an issue but those bicameral differences never get resolved. All of these forms of legislative death occurred without intervention from the opposition party and based on our legislative histories were due solely to the majority party’s inability to coalesce behind legislative language. House members and senators of the same party often have different policy priorities and preferences that get in the way of reaching bicameral agreement. Legislative leaders in a party are not always able to craft legislation that can command broad support from co-partisans. These non-filibuster related challenges continue to stymie parties in the contemporary Congress, despite their increased ideological homogeneity in recent years.

Parties in divided government also struggle with internal disagreement. But, not surprisingly, veto points controlled by the opposing party, including the filibuster, account for a much higher proportion of majority party agenda failures in divided government (57%) than in unified government (33%) (p < 0.05). Most failures in divided government occur when a majority party is blocked by its opposition in the White House or in the other chamber. Even so, scholars should not underrate the challenges congressional majority parties face in reaching internal agreement on policy. Our data show that intraparty disagreement consistently accounts for more cases of majority party agenda failure than does the Senate filibuster.

We also do not find evidence that the filibuster accounts for an increasing share of majority party agenda failures across the time frame of our study. Researchers have documented rising problems associated with the filibuster and extended debate in the Senate (Koger 2010; Sinclair 2016; Smith 2014). The frequency of failed cloture votes in the Senate has increased markedly.[23] However, our data do not indicate that a rising share of majority party agenda priorities have fallen victim to the filibuster. Figure 5 displays the share of failed agenda priorities attributable to the Senate’s 60-vote threshold by Congress. Given the relatively small number of agenda items in any given congress, these percentages will vary considerably by random chance. Nevertheless, it is clear that the filibuster presents a significant problem for majority parties, accounting for a significant overall share of agenda failures. But there is no trend toward an increased number or percentage of majority party agenda items failing at the Senate’s 60-vote threshold. In fact, the two most recent congresses in the study, the 115th (2017–18) and the 116th (2019–20), did not see any majority party agenda items fail due to the filibuster. Notably, the four agenda priorities on which Republicans could not enact any legislation in the 115th Congress with unified party control were all cases where the party failed to reach internal agreement.[24]

Figure 5: 
Agenda failures attributable to the Senate’s 60-vote threshold.

Figure 5:

Agenda failures attributable to the Senate’s 60-vote threshold.

4 High Profile Cases of Majority Party Failure due to Internal Disagreement

Remarkably, every majority party possessing unified control of government failed on at least one of its foremost agenda priorities due to intraparty disagreement. Democrats under President Bill Clinton in the 103rd Congress (1993–94) collapsed on comprehensive health care reform, easily the party’s highest legislative priority. While Republicans opposed the effort across-the-board, liberal and moderate Democrats could not reach internal agreement on fundamental policy questions such as whether employers should be required to pay employee health care costs or whether the cost of premiums should be capped.[25] House Democrats were unable to get a bill reported from the Energy and Commerce Committee, one of the three House committees with jurisdiction.[26] The Senate Finance Committee reported a bipartisan bill, and Senate Labor and Human Resources reported a partisan bill. Despite heroic efforts, Senate Majority Leader George Mitchell (D-ME) could not break the intra-party deadlock. After more than a year of effort, Mitchell declared defeat in late September, just before the 1994 midterms.[27] Comprehensive health care reform never received a floor vote in either House or Senate in the 103rd Congress.

Making the Bush tax cuts permanent was a leading priority of Republican unified government in the 108th Congress (2003–04). But with the economy slowing, the party struggled with a “dispute in their own ranks about how and when to push for additional tax cuts at a time of growing deficits.”[28] Moderate Senate Republicans floated less-expensive proposals for making some of the Bush tax cuts permanent, while conservative Republicans in House and Senate insisted the tax cuts would pay for themselves. The House passed a bill on party lines (H.R. 8), but the Senate Finance Committee did not seek to advance companion legislation.[29]

Republicans’ top priority for unified party government in the 109th Congress (2005–06) was to restructure Social Security by adding individual investment accounts to the government pension program. Newly reelected President George W. Bush and Vice President Dick Cheney undertook a campaign-style national tour to promote the idea. Republican leaders set aside H.R. 1 and S. 1 as placeholders for the legislation they planned to develop. House Ways and Means Chair Bill Thomas (R-CA) initially suggested a June 2005 deadline for his committee, but the committee never reported legislation on the issue. Senate Finance Committee Chair Grassley did not evince enthusiasm for the effort, letting conservative hardliners Sen. Jim DeMint (R-SC) and Rick Santorum (R-PA) take the lead via an informal strategy group.[30] In the end, neither House nor Senate Republicans were able to come together around a plan, and the effort was tacitly shelved.[31]

Democrats’ most notable agenda failure during their control of unified government in the 111th Congress (2009–10) was their inability to pass legislation combatting climate change. House Democrats were not able by themselves to assemble a chamber majority for their bill, despite holding 256 seats. Given the divisions within their own ranks, Democrats needed votes from Republicans to pass the bill out of the House of Representatives.[32] Likewise, with Democratic senators from oil-drilling and coal-mining states expected to vote no, proponents needed support from at least three and as many as five Republicans, despite Democrats controlling 59 and sometimes 60 Senate seats in the 111th Congress.[33] The Senate Energy and Natural Resources Committee reported a bill, but the compromises struck in committee alienated some conservation-minded Democrats such that issues would need to be resolved on the Senate floor.[34] No bill was advanced even for a failed cloture vote in the Senate.

With unified party control in the 115th Congress (2017–18), Republicans’ top agenda priority was to repeal and replace the Affordable Care Act (i.e., “Obamacare”). Republicans passed a budget resolution during the first week of the new Congress authorizing the use of budget reconciliation to enact health care legislation without any bipartisan support.[35] Despite devoting the first nine months of 2017 to the effort, Republicans were never able to muster sufficient intra-party support. The House leadership’s first bill, the American Health Care Act, had to be pulled from the floor, with conservatives denouncing the proposed replacement as “Obamacare Lite” and Heritage Action whipping members to vote no.[36] Although House Republicans regrouped to narrowly pass a revised bill (217–213), Senate Republicans balked at the House bill. Senate leaders worked for two more months but failed to produce a compromise bill that could simultaneously win the support of both moderates and conservatives. As a last-ditch effort, Senate leaders proposed a scaled-down “skinny repeal” bill in late summer that dismantled only minor parts of Obamacare. Even this modest effort failed on the Senate floor (49–51) when three Republican senators, including Sen. John McCain (R-AZ), back from cancer treatment, voted no.[37]

5 Circumventing the Filibuster?

In weighing the importance of the Senate filibuster as a constraint on majority party agenda success, it is important to consider the use of budget reconciliation procedures, the most effective tool available to majority parties to circumvent minority party obstruction. The congressional budget process allows a simple majority of senators to enact legislation pursuant to a budget resolution. Although the “Byrd rule” restricts the use of reconciliation for various purposes, the procedure has become a key way for majority parties to enact their agenda items.

Figure 6 displays the frequency with which Congress has enacted laws using the budget reconciliation process since 1980. Reconciliation bills passed with party-unity votes are shown in white bars; reconciliations passed with bipartisan majorities are shown with black bars.

Figure 6: 
Number of enactments via budget reconciliation, by congress.

Figure 6:

Number of enactments via budget reconciliation, by congress.

As shown here, bipartisan reconciliation enactments have become increasingly rare. Congress has not enacted a bipartisan reconciliation package since the Balanced Budget Act of 1997. It is clear from these data that budget reconciliation is rarely employed today to pass legislation that could otherwise gain bipartisan support. Reconciliation was used to pass major party agenda priorities, including the Tax Cuts and Jobs Act (2017), the Affordable Care Act (2010), and the Bush tax cuts of 2001 and 2003.

At the same time, reconciliation is used much less frequently today. Reconciliations routinely happened in divided government under Ronald Reagan and George H.W. Bush, usually on bipartisan votes. Now reconciliation enactments only happen when there is unified government, a relatively rare condition. Furthermore, even in unified government there are not many reconciliation enactments. Congress very rarely passes more than one such measure across a two-year Congress, even though majority parties looking to circumvent minority party filibusters could potentially use the process multiple times per year. When Republicans took control in 2017, for example, Speaker Ryan said that much of the GOP’s sweeping “Better Way” agenda could be enacted in reconciliation. But, in the end, Republicans only passed one law via reconciliation – the TCJA. Republicans did not even attempt to use budget reconciliation in 2018.

The infrequency with which majority parties employ reconciliation procedures suggests that they do not find it easy to get these packages through, despite the streamlined procedures. The 109th Congress under George W. Bush (2005–06) was the only recent congress where a majority party enacted more than one law via reconciliation procedures. Both of the 109th Congress’s reconciliation enactments were relatively modest. The Deficit Reduction Act of 2005 achieved savings of about $40 billion in mandatory spending, and the Tax Increase Prevention Act extended some preexisting tax cuts on the alternative minimum tax and on capital gains and dividends. The major reconciliation packages in the George W. Bush years were the tax cuts of 2001 and 2003, and Congress only passed a single reconciliation bill in each of those congresses. The fact that parties do not have recourse to the budget reconciliation process more frequently also reinforces the point that majority parties in the polarized Congress continue to struggle with reaching internal agreement, not only with minority party obstruction.

6 Conclusions

The filibuster is just one of many obstacles that get in the way of parties’ ambitions in the American political system. Long before the emergence of the 60-vote Senate, Schattschneider (1942, 8) characterized American political history as “the story of the unhappy marriage of the parties and the Constitution, a remarkable variation of the case of the irresistible force and the immovable object.”

Numerous features of the U.S. system have the effect of fragmenting parties. The president and Congress are elected separately, with presidents routinely confronting congresses controlled by the opposing party. Members are separately elected in geographic constituencies, not on a party list. House members and senators, even those of the same party, represent constituencies that differ across a wide array of political, demographic, and economic dimensions. All of these aspects of the system continue to make it difficult for party members to reach consensus on legislation. Although internal divides within the parties have diminished as the parties have sorted out along ideological lines, it is still a struggle to get parties in American national government to act in concert.

The Democrats’ 2021 difficulties in passing their Build Back Better package, President Biden’s major policy agenda priority, reveals that even when parties are able to set aside the constraints of the filibuster, they still struggle to coalesce on policy. Because the Build Back Better package will be considered under budget reconciliation, Democrats neither need nor intend to seek Republican support. Nevertheless, they have bargained over the package for the better part of the year, and at this writing it looks increasingly unlikely that they will be able to enact the legislation before 2022.

Although contemporary Democrats’ conservative contingent is not large—the Blue Dog caucus stands at a paltry 19 members—moderates remain pivotal in a closely divided Congress. Democrats in both House and Senate have haggled for months about the size of the Build Back Better package and the need for budgetary offsets to cover its cost. Moderate Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) received much press attention for their varying demands, but the difficulties of negotiating internal agreement extended to the House, as well. Along with other moderates, Rep. Abigail Spanberger (D-VA) balked at the lack of clarity about deficits and declared that “nobody elected Biden to be FDR.”[38] Meanwhile, for their part, liberal Democrats did not agree among themselves on what policies to prioritize. House Speaker Nancy Pelosi (D-CA) aimed to strengthen and expand Obamacare, for example, while Senate Budget Committee Chair Bernie Sanders (I-VT) wanted to provide vision, dental, and hearing coverage for Medicare beneficiaries.[39] Constituency-oriented members, such as Rep. Josh Gottheimer (D-NJ) and other members from high-tax states sought to provide tax breaks to their residents by restoring the state and local tax (SALT) deduction; other Democrats preferred to put those funds to different use.[40] In short, bypassing the filibuster is no panacea for majority parties seeking to legislate their agenda priorities.

The data presented here illuminate the multitude of challenges facing congressional majority parties in American politics, aside from the filibuster. No doubt, the 60-vote Senate is a formidable obstacle, but its importance has been exaggerated. Most party agenda failures are due to other causes, even in the relatively rare condition where a single party possesses unified control of national government. The budget reconciliation process offers a “pressure valve” allowing for majority parties to enact some important agenda items without the need to meet the Senate’s 60-vote threshold. But the fact that the procedure is used so rarely, even in congresses with unified government, shows that parties do not find it easy to come together to push such packages through. Parties could, in theory, pass multiple reconciliation bills in a single congress, but they very rarely do so. In most cases, one reconciliation enactment is the most parties can do.

Reaching internal agreement remains grossly underestimated as a constraint on congressional parties today. Scholars tend to describe contemporary parties as “homogenous.” They are indeed more ideologically homogenous than they were in the 20th century, but they are hardly homogenous in any absolute sense.

In part, scholars’ lack of emphasis on the challenges of intraparty disunity reflects the parties’ own messaging. Parties prefer not to broadcast their internal divides, debating such controversies primarily in closed caucus meetings rather than openly on the floors of the House and Senate with the goal of keeping their disagreements “in the family.” Likewise, parties rarely go down to public defeat on the floor on their agenda items, as Republicans did with their failed effort to repeal and replace Obamacare. In most cases when parties fail on their agenda items due to internal disagreements, the whole effort dies quietly in committee. Meanwhile, members express loud and sustained outrage when they are blocked by the minority party via the Senate filibuster. Parties’ strong incentive to blame the other party for stalemate contributes to an exaggerated impression of the filibuster’s importance. When parties fail because they cannot agree among themselves, the incentive is to sweep the disagreement under the rug as much as possible.

The bottom line is that analysts should be careful not to overrate the importance of the filibuster as a challenge for majority parties’ legislative capacity. Parties regularly campaign on bold agendas to which their whole membership is less than fully committed. Leaders may announce these agendas at the start of a Congress with much fanfare, but there is no guarantee that the party will actually succeed in reaching enough consensus to report a bill from committee, much less confront the filibuster hurdle. The filibuster is unquestionably a fearsome obstacle. But it is just one among a huge array of challenges for parties in a political system that has always been hostile to partisan ambitions.


Corresponding author: James M. Curry, University of Utah, Salt Lake City, UT, USA, E-mail:

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Published Online: 2022-01-14

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