12/17/2012 07:48 pm ET Updated Feb 16, 2013

How to Get Bipartisan Filibuster Reform Passed Now

Filibustering used to be like a game of chicken with opposing parties waiting to see who would blink first. Those in the Senate minority party would take the floor to continue "debate" on a bill they opposed, often reading Shakespeare or phone books, just to avoid having the bill come to a vote and the majority would have to decide at what point it was better to back down than to allow the minority's pointless oratory to make a mockery of the supposedly dignified Senate. Although bills only need 51 votes to pass in the 100-member Senate, they need 60 votes in order for a filibuster to be formally ended through a cloture motion.

The times when either party could wrangle 60 votes for a bill that was contentious enough to start a filibuster have been few and far between. Looking to the future, it is unlikely that those votes will be available again anytime soon. In an odd turn of events, the filibuster has become an even more powerful weapon of the minority party because majority parties seem to accept the threat of filibuster as equivalent to the real thing. Senators no longer need to spend day and night speaking on the Senate floor to continue a filibuster; they merely have to mention they are thinking of doing so and the up or down vote becomes an impossibility.

There is little question that needing a 60-vote supermajority in an increasingly ideologically divided Senate is leading to legislative gridlock on a scale never before seen in the U.S. Over the past 15 years, the filibuster has been used more than in the entire prior history of the Senate combined. The question is what to do about this morass.

Each side has taken turns proposing and opposing filibuster reform in predictable ways. When Democrats were in the minority during the Clinton and Bush years, they filibustered at unprecedented levels relative to historical norms. The Republicans called the Democrats obstructionist and reminded the Dems that elections have consequences; that is, until they found themselves in the minority at the end of the Bush years and into Obama's term. Suddenly, the Republicans recognized the importance of filibuster for preventing the majority of Senators from running roughshod over the "will of the people." In the last six years, the Republicans have nearly doubled the use of the filibuster compared to any previous senate in history. Now it is the Democrats turn to call the Republican's obstructionists. Clearly, both parties of acting in their own self-interest, very narrowly defined. How can they escape from this dilemma short of the "nuclear option," which is bound to cause more problems than it solves?

Perhaps a Dutch auction can help us find the solution. Every year when I teach Introduction to Social Psychology at UCLA, I give a lecture on decision-making and I start by auctioning off a $10 bill. As odd as that may sound, I've seen students make bids as high as $53 for a $10 bill. Why would anyone do something so foolish? Dutch auctions have a wrinkle that promotes this strange behavior. Both the top bid and the second highest bid have to pay what they offered, but only the highest bid gets the $10 prize. The critical moment comes when I have bids from two students at $8 and $9, respectively. Ordinarily there is no incentive to give someone $10 to get $10 back, but in this case, if the low bidder stays at $8, he will have to pay $8 and get nothing in return. So he bids $10 because breaking even is better than losing money. Now the pressure shifts to the other bidder who has to bid $11 in order to avoid losing. She is going to end up paying $1 in the final exchange in order to have the privilege of not paying $9 for nothing. And so it goes, each party digging themselves deeper and deeper into a hole of foolishness. Yet as the parties focus on their narrow self-interest, it is always better to outbid the opponent by a dollar and make sure the other person is the one who pays without getting anything back. Usually around the $25 mark, one of the players just gives up. This player ends up losing $24 and the "winner" ends up losing $15. Both would have been much better off staying out of the auction altogether and short of that, agreeing to lose at $9 rather than chasing a near-pointless win.

In the 15 years I've been conducting Dutch auctions, only once did a student spontaneously hit on the solution that works best for all. The person with the lower bid had to make an offer that neither party would then want to oppose going forward. If the low bid is $9 and the high bid is $10, the solution is to bid $20. It seems to go against one's narrow self-interest, but if one imagines how the game will play out otherwise, it is the only way to minimize the pain to both players. Both players will end up with the same outcome and the pain of the game is ended.

How does this help end the quagmire we are in with respect to filibusters? The senators need to stop relying on their narrow self-interest and instead rely on their unrealistic optimism for the future. In any given Senate, one party would love to do away with the filibuster right now so they can implement their agenda and the other party will fight tooth and nail to save it because the majority party agenda is anathema to them. But both parties have unrealistic expectations of being in the majority in the future. Both parties tend to naively assume that the American public really shares their beliefs more than the other party's and that in a few election cycles their own party will clearly hold the reigns of power in the Senate.

So the solution is easy. The Senate should vote on ending or seriously reforming filibusters, but the implementation of the policy should be pushed off six years into the future. Both parties will be confident that they will be in the majority in six years and will disproportionately benefit by being able to push their own legislative agenda through. Personally, I have no idea who will be in power in six years, but I'd rather someone get a chance to legislate and if we don't like it, we can vote in a new majority two years later.