Posner,7,2,0,The filibuster is usually thought a peculiar institution unique to the U.S. Senate .
Posner,7,3,0,Actually it originated in the ancient Roman Senate , has a long history in the British Parliament , is found in the legislatures of other English-origin nations as well , and was at one time employed by members of our House of Representatives .
Posner,7,4,0,Until quite recently it consisted simply of a legislator , or group of legislators , refusing to yield the floor , thus preventing the legislature from conducting other business .
Posner,7,5,0,Strom Thurmond appears to hold the record , having spoken on the floor of the Senate for 24 hours uninterruptedly .
Posner,7,6,0,Before there was a rule of  $ cloture $ -LRB- a vote to limit debate -RRB- , filibusters could be defeated only by the majority $  s remaining in session , ready to vote on the bill being filibustered , until the filibustering senators gave up , exhausted .
Posner,7,7,0,Since 1975 , a vote of 60 senators -LRB- previously it had been 67 -RRB- can limit debate and thus end a filibuster .
Posner,7,8,0,Filibusters have become increasingly common -LRB- and therefore cloture votes as well -RRB- , and this is usually ascribed to growing political polarization .
Posner,7,9,0,But a simpler explanation is that because the Senate is busier than it used to be , the announcement of a filibuster is generally enough to impel a cloture vote $ '' the majority doesn $  t want to take the time to try to wear out the filibusterers .
Posner,7,10,0,If there are enough votes for cloture , the filibuster never takes place ; if there aren $  t enough votes , the majority gives up and abandons the bill that was to be filibustered .
Posner,7,11,0,Hence the cost of filibustering has plummeted .
Posner,7,12,0,The filibuster , especially in its present streamlined form , creates a supermajority requirement to enact federal legislation .
Posner,7,13,0,Supermajoritarianism is not unknown to the U.S. Constitution , which requires a two-thirds majority to overcome a presidential veto and a two-thirds vote to send a constitutional amendment to the states for ratification and three-fourths of the states must vote to ratify for the amendment to be adopted .
Posner,7,14,0,But there is no supermajority requirement to enact ordinary legislation that the President does not veto , though the framers of the Constitution may have known that there were filibusters in the House of Commons and if so may have realized there could be filibusters in the Senate .
Posner,7,15,0,The Senate could abolish the filibuster by changing its rules to allow a simple majority to end debate on a bill .
Posner,7,16,0,It is true that Senate rules require a two-thirds vote to change a Senate rule , but it is possible that the two-thirds rule could be changed by a simple majority .
Posner,7,17,0,There is no pressure in the Senate itself to abolish the filibuster .
Posner,7,18,0,The reason is that it benefits all Senators , not just those who expect to be in a minority , because it arms every Senator to demand concessions in exchange for voting for cloture .
Posner,7,19,0,Several Senators exacted what seemed exorbitant concessions to induce them to vote for the health reform bill .
Posner,7,20,0,The usual criticism of the filibuster is that it is undemocratic , but this is imprecise , quite apart from the fact that the Constitution is riddled with undemocratic features -LRB- such as the amendment provision that I mentioned and the rules for the appointment and tenure of federal judges , not to mention the Electoral College and the entitlement of every state to two Senate seats regardless of population -RRB- .
Posner,7,21,0,A supermajority requirement for the enactment of legislation should just increase the  $ price $ that the committed majority must  $ pay $ for the votes of the uncommitted or strategic holdouts .
Posner,7,22,0,If 49 Senators oppose or pretend to oppose some bill and threaten a filibuster , the majority needs to pry only nine of the opponents away from the opposition bloc to defeat the filibuster threat .
Posner,7,23,0,The majority can offer concessions quite unrelated to the bill ; alternatively , rather than  $ paying off $ prospective filibusterers , they may be able to threaten to withhold support from them on issues more important to them than defeating the bill favored by the majority .
Posner,7,24,0,If the holdouts are members of the majority party , the leadership may be able to coerce them by threatening to deny them choice committee assignments .
Posner,7,25,0,And in fact historically the filibuster has rarely resulted in paralyzing the federal legislative process .
Posner,7,26,0,The usual example of where it did paralyze it is the filibustering of civil rights legislation by Southern Senators such as Thurmond and Byrd in the 1950s .
Posner,7,27,0,But it has been argued that the filibuster would have been overcome had not many Northern Senators been only lukewarm in their support of civil rights ; and it does seem unlikely that the civil rights revolution could have come much earlier than it did .
Posner,7,28,0,What has awakened controversy over the filibuster is of course the election of Scott Brown as Senator from Massachusetts in place of the deceased Ted Kennedy .
Posner,7,29,0,It is assumed that since the Senate and House had each voted a health reform bill $ '' in the Senate , over an attempted filibuster $ '' and the Democrats retain a strong -LRB- 59 to 41 -RRB- Senate majority even after Brown $  s election , were it not for the filibuster a health reform bill would now be law .
Posner,7,30,0,This is far from certain .
Posner,7,31,0,The Senate and House bills were different in a number of respects , and the differences would have had to be ironed out in conference and a single draft then have had to be approved by a majority in both the House and the Senate .
Posner,7,32,0,With the vote on the House bill having been excruciatingly close , and a majority of the general public being opposed to either bill , an attempt to enact a compromise bill might have foundered .
Posner,7,33,0,Conversely , a single bill may still be enacted , despite Brown , with the aid of the  $ reconciliation $ procedure for thwarting filibusters by a simple majority vote .
Posner,7,34,0,That procedure is intended for bills designed to reduce federal debt , but has sometimes been used outside its intended scope $ '' and by both parties .
Posner,7,35,0,The Administration appears to be desperate to obtain passage of a health law by hook or crook , as otherwise the capacity of the President and the Democratic Party to govern will be called into question .
Posner,7,36,0,There is an argument for the filibuster , and hence for a supermajoritary requirement , in the case of the health care program being pushed by the Administration .
Posner,7,37,0,Because the program is unpopular among the general public , its enactment by a simple majority in both Houses would raise a valid question about the representative character of Congress .
Posner,7,38,0,Not that a legislature should always bow to popular opinion .
Posner,7,39,0,The theory of American government is representative rather than direct democracy -LRB- the latter illustrated by the referendums in California and other states $ '' the Constitution makes no provision for federal referendums -RRB- , and the representative is intended to season his constituents $  opinions with his own judgment rather than act simply as a transmission belt .
Posner,7,40,0,But the health care program has been kicking around in Congress for a year , and the inability of its supporters to convince the public of the program $  s wisdom , coupled with the program $  s enormous cost and its potentially disruptive consequences for the health care industry $ '' the largest in the United States , accounting for a sixth of our $ 14 trillion Gross Domestic Product $ '' and indeed the entire economy , may make people question the democratic legitimacy of enacting the program with just a simple majority in the House and Senate .
Becker,7,2,0,Although the American Constitution does not provide for the filibuster , the founders of this country were very much concerned about protecting the rights of minorities .
Becker,7,3,0,The checks and balances between the Congress , President , and Judiciary built into the Constitution were designed to make it difficult to pass legislation that infringed on the rights of important minorities .
Becker,7,4,0,The Bill of Rights was added to the Constitution to solidify this protection .
Becker,7,5,0,Alexander Hamilton , James Madison , and John Jay in their essays in the superb Federalist Papers argued for the Constitution against a skeptical New York public .
Becker,7,6,0,They recognized the necessity of having a constitution that protected minorities from  $ ephemeral $ majorities , and they claimed the separation of powers , and other aspects of the Constitution , would
Becker,7,7,0,succeed in protecting most minorities .
Becker,7,8,0,The founding fathers were not believers in a na  ve form of democracy where simple majorities should always have their way .
Becker,7,9,0,XXXX gives a brief history of the evolution of the filibuster rule in the Senate .
Becker,7,10,0,The requirement that at least 60 senators , or 60 % of the senate members , are needed to impose cloture and cut off debate is not an overly stringent requirement for issues of any real significance .
Becker,7,11,0,The size of the supermajority needed to cut off debate is considerably smaller than the Constitutional stipulated two-thirds majority required to overcome a presidential veto of a bill sent from Congress .
Becker,7,12,0,Surely , for example , a simple majority should not be sufficient to commit a country to a major war , for that could involve both a large sacrifice of the lives of men and women from different regions and backgrounds , and much higher taxes and the creation of large amounts of public debt , although I do not believe any senator has ever tried to filibuster against US entry into a war .
Becker,7,13,0,Several senators from the South in the 1950s tried to use the filibuster to block civil rights legislation .
Becker,7,14,0,Since for almost a century after the Civil War the South had been preventing its sizable black population from obtaining a decent education , good jobs , judicial protection , and common decency , many in the North were outraged at this filibuster attempt to block the provision of better education , voting rights , and other protections to Southern blacks .
Becker,7,15,0,Nevertheless , the civil rights legislation would require major changes in the South , and it is not unreasonable that more than a simple majority of Senate votes should have been necessary to implement these momentous -LRB- and also highly desirable -RRB- changes .
Becker,7,16,0,However , it should have been possible during the 1950s when Southern senators were filibustering to use a supermajority in the Senate to invoke cloture to end the filibuster .
Becker,7,17,0,The many proposed changes in health care in the House and Senate bills is the most controversial and important of all the current bills working their way through Congress and President Obama $  s agenda .
Becker,7,18,0,Expenditures on health care currently absorb 16 % of American incomes , and this percentage continues to grow .
Becker,7,19,0,Since many of the changes in these health bills would have large effects on taxpayers and patients , any major new health bill should be subject to a possible filibuster that would require the votes of at least 60 senators to cut off further debate .
Becker,7,20,0,The President has said that the debate has gone on long enough , and that further prolonged debate on health reform would be useless .
Becker,7,21,0,He therefore proposes to use the  $ reconciliation $ procedure to avoid any filibuster and allow a health bill to be passed with a simple majority in the Senate -LRB- and of course the House -RRB- .
Becker,7,22,0,I can not say whether this is a wise political maneuver , but I do believe the use of reconciliation in this case is harmful from the point of view of the country $  s welfare .
Becker,7,23,0,Despite the long debate , many provisions of both the House and Senate bills remain highly controversial .
Becker,7,24,0,These include , among many others , the way the uninsured would get coverage , the de-emphasis on health savings accounts , the postponement until 2018 of the elimination of the tax advantages from expensive employer-based health plans , no increase in the ability of persons and companies in one state to contract with insurance companies located in other states , and especially the minor efforts to raise out of pocket expenses by consumers of health care in order to reduce their overuse of doctors , drugs , and even hospitals .
Becker,7,25,0,Such a badly designed health care bill would on the whole worsen rather than improve the American health care system , and it should not be allowed to slip by through the back door of reconciliation .
Becker,7,26,0,So my conclusion is that the supermajority requirement of invoking closure to cut off Senate debate is useful protection not only to minorities , but also to overly hasty passage of controversial legislation .
Becker,7,27,0,People on all positions will sometimes be frustrated by the need to have such a supermajority , but in the long run most of the time they will be happy that such rules are in effect .
Posner,7,2,0,The U.S. Senate is a very peculiar institution .
Posner,7,3,0,It was not when it started .
Posner,7,4,0,It was created to be a check on the popularly elected House of Representatives , but also on the President , through its '' '' '' `` advise and consent '' '' '' '' power -- the President 's nominees for officials had to be confirmed by the Senate .
Posner,7,5,0,Senators were not to be elected , but to be appointed by the state legislatures .
Posner,7,6,0,The assumption was that the legislatures would want to appoint a person of distinction to represent the state .
Posner,7,7,0,There were only 13 states -LRB- though more were envisioned -RRB- , so there would be only -LRB- at the outset -RRB- 26 Senators .
Posner,7,8,0,Their long terms -LRB- six years -RRB- would encourage expertise and a greater independence from popular passions than the members of the House of Representatives , elected for only two-year terms , could be expected to have .
Posner,7,9,0,The Senate would , in short , be an elite , deliberative , and only indirectly democratic body .
Posner,7,10,0,The change in the character of the Senate since the Constitution of 1787 has been profound .
Posner,7,11,0,Senators , as a result of a constitutional amendment , are now directly elected , and there are 100 of them .
Posner,7,12,0,The combination of the amount of time that they have to spend raising money and tending to constituents , and the immensely greater populations of most states now compared to the eighteenth century , and the enormously greater size and complexity of the federal government , have resulted in Senators ' being underspecialized , despite having large staffs .
Posner,7,13,0,The filibuster -LRB- a creature of Senate rule rather than of the Constitution or a statute -RRB- creates a requirement of a supermajority to pass legislation to which there is substantial senatorial opposition , and rules or customs of senatorial '' '' '' `` courtesy '' '' '' '' give individual Senators considerable blocking power , for example power to delay confirmation hearings .
Posner,7,14,0,The result is that the Senate is an extremely inefficient institution compared to the House of Representatives , in which the majority is in firm command .
Posner,7,15,0,And because there are so many more House members -LRB- 435 -RRB- , they have fewer committee assignments and thus can develop greater expertise than Senators ; in addition , although they run for office three times as often , they run in much smaller districts and often with little competition and on both accounts do n't have to raise as much money in campaign donations as Senators do .
Posner,7,16,0,Since the Senate is very large and Senators are directly elected , it is unclear why there is a Senate -- that is , why the federal legislature is bicameral .
Posner,7,17,0,Bicameralism increases the transaction costs of enacting legislation , which can be good or bad -LRB- it is bad in national emergencies , as in the financial crisis of last September -RRB- , and it also increases the cost of repeal , which on balance probably is bad , arbitrarily enhances the political power of sparsely populated states , results in many unprincipled and confusing legislative compromises , and diffuses responsibility for legislation .
Posner,7,18,0,It is not clear that on balance we are better off with the bicameral system .
Posner,7,19,0,The filibuster is an incomprehensible device of government .
Posner,7,20,0,A supermajority rule , whether it is the rule of unanimity in criminal jury trials or the supermajority rules for amending the Constitution , makes sense when the cost of a false positive -LRB- convicting an innocent person , or making an unsound amendment to the Constitution -RRB- substantially exceeds the cost of a false negative .
Posner,7,21,0,But it is hard to see the applicability of that principle to Senate voting , given the other barriers to enacting legislation .
Posner,7,22,0,These reflections on the filibuster are prompted by the Democratic Party 's recent achievement of a filibuster-proof -LRB- 60-40 -RRB- majority in the Senate .
Posner,7,23,0,It might seem that since the President Obama and Vice-President Biden made such a strenuous effort to convert Senator Arlen Spector from the Republican to the Democratic Party , which put the latter within one vote of a filibuster-proof majority , they must think that having such a majority is a political asset .
Posner,7,24,0,I am not so sure they do think that .
Posner,7,25,0,It is easy to see why the conversion was in the Democratic Party 's interest regardless of its potential effect on the filibuster ; by eliminating one of the Republican Party 's most prominent moderates , it contributed to the growing marginality of that party , as it becomes increasingly identified with a rather shrunken right wing .
Posner,7,26,0,I am not sure the filibuster-proof majority is a boon to the Democratic Party and program .
Posner,7,27,0,Because if now the Administration 's legislative program fails of passage or is mutilated in the course of passage , it will not be possible to blame an obstructive minority consiting of filibustering Republican windbags .
Posner,7,28,0,Furthermore , the new voting alignment increases the power of every Democratic Senator , by threatening to align himself with the 40 Republicans in a crucial legislative showdown , to thwart the Administration 's program or , more realistically , to insist on what may be costly compensation in the form of an amendment favoring an interest group that is important to his electoral prospects .
Posner,7,29,0,Indeed , each of the Democratic Senators now has an incentive to play the hold-out in order to extract concessions , in any situation in which Republicans need only one or a very few Democratic defectors in order to defeat an Administration bill .
Becker,7,2,0,The United States , as the name indicates , was formed as a confederation of independent states-initially only 13 , but since expanded to 50 .
Becker,7,3,0,The first Federal government was based on The Articles of Confederation , but that was abandoned because it gave too little power to the Federal government .
Becker,7,4,0,It was replaced in 1787 by the Constitution .
Becker,7,5,0,Many governance rules have been a compromise between the growing power of the federal government , and the original vision of the country as a confederation of states that retain much of the legislative powers .
Becker,7,6,0,XXXX describes the evolution of the Senate from a few members appointed by state legislatures to a much larger body elected directly by the voters of each state , where each member serves a 6-year term that is renewable indefinitely .
Becker,7,7,0,Small states , like Rhode Island , have the same number of senators as the most populous states of California and New York .
Becker,7,8,0,The Senate is an anachronistic byproduct of the original concept of a federation of states since in the modern world the federal government dominates state governments .
Becker,7,9,0,The potential influence of a relatively small number of states is increased by the supermajority rule that is embodied in the filibuster .
Becker,7,10,0,The Senate filibuster is not a part of the Constitution , but is a rule the Senate established .
Becker,7,11,0,However , the protection the filibuster gives to minorities does fit in with the belief of the founders of the nation that the power of majorities needs to be constrained in order to protect the interests of minorities .
Becker,7,12,0,The Constitution , and the checks and balances among the executive , legislative , and judicial branches of government , are important ways they devised to rein in the power of majorities .
Becker,7,13,0,Whether someone likes or dislikes the use of the filibuster on particular issues usually comes down to whether they like the legislation that the majority is trying to pass .
Becker,7,14,0,However , the evaluation of the Senate filibuster as a legislative rule should depend on whether filibusters have blocked desirable legislation more than they prevented the abuse of power by a majority , especially power by a temporary majority .
Becker,7,15,0,Its main use during the past 70 years is not reassuring since Southern senators filibustered on several occasions against civil rights legislation in order to protect discrimination by Southern states against blacks .
Becker,7,16,0,However , their filibusters did no more than delay the passage of this legislation , and the delay gave time for the South to become reconciled to the necessity of giving Southern blacks more equal rights .
Becker,7,17,0,The mere threat of a filibuster has sometimes discouraged the bringing up of bills in Congress , although these threats also probably only temporarily delayed passage of legislation with a strong and sustained majority interest .
Becker,7,18,0,Even senators that oppose particular legislation hesitate to filibuster legislation that has a strong mandate since they risk becoming unpopular .
Becker,7,19,0,Yet they may use the threat of a filibuster to extract a compromise more favorable to their position .
Becker,7,20,0,The use of the filibuster has been rising over time : the 110th Congress had over 100 closure votes to try to cut off further debate .
Becker,7,21,0,The Democratic majority in the present Congress seemed intent on achieving a '' '' '' `` filibuster proof '' '' '' '' majority of 60 members .
Becker,7,22,0,Yet , as XXXX discusses , having just the minimum number of senators that can enforce the closure rule gives considerable bargaining power to Democratic senators who do not strongly endorse the Democratic position on particular legislation .
Becker,7,23,0,I generally support requiring super majorities in the legislature on a selected number of major issues because I believe the abuse of majority power is a greater danger in the world of big government than is the blocking of the majority 's will .
Becker,7,24,0,To be sure , the Senate filibuster is not the ideal way to do this , partly because it is not confined to major issues , and partly because the Senate is based on representation by states rather than by population .
Becker,7,25,0,Nevertheless , the filibuster may well be better than the alternative of having just straight majority voting in both houses .