One of the most ignominious moments in congressional history took place in the spring and early summer of 1964, during the Senate debate on the historic civil rights bill. Southern senators, led by Georgia’s Richard Russell, were filibustering the legislation, trying to talk their northern colleagues into submission. CBS correspondent Roger Mudd reported from Capitol Hill every night with a clock superimposed on the screen to mark how long it was taking the Senate to end the filibuster. On the day that the senators announced whether they supported or opposed cloture, which would end the filibuster, CBS displayed a chart with every senator’s name and vote.
The filibuster–it finally failed, of course, that June, and the bill became law–culminated an ongoing struggle that had taken place since the 1930s, in which Southerners repeatedly, and often successfully, relied on the procedure to defeat a range of civil-rights measures, ranging from anti-lynching proposals to measures to end public segregation.
To 1960s liberals, the Senate and its procedures embodied the pitfalls of the legislative process. The NAACP regularly ranked filibuster reform, along with ending lynching or segregation, among its top legislative goals. Minnesota Senator Hubert Humphrey called the filibuster an “undemocratic” and “evil” procedure. The filibuster, said Humphrey’s Minnesota colleague, Senator Walter Mondale, “has been used repeatedly by a small group of senators as a method for stopping action and avoiding compromise on measures which have been carefully considered and which were favored by a vast majority of members of this body–from all sections of the country and of all political philosophies–and by an overwhelming majority of the people of this nation.” Liberals of this earlier era decidedly did not share the enthusiasm for the body expressed by George Washington, who once explained to Thomas Jefferson that the purpose of the Senate was to “cool” the legislation that came out of the House of Representatives, in the same way a saucer cooled hot tea.
Liberals brought their fight for filibuster reform into the 1970s, trying to change the cloture rule so that a simple majority of the Senate could stop debate and move for a vote on the substance of legislation. The biggest victory came in 1975, when Mondale, Republican Senator James Pearson of Kansas, and a coalition of liberals persuaded their colleagues to lower the number of votes needed to end a filibuster from two-thirds (67) of the Senate to three-fifths (60). The compromise, which Vice President Nelson Rockefeller assisted through a series of favorable rulings on procedure, obtained the vote of conservative Democrats like Russell Long, as well as Republican Robert Dole. The final vote was 56 to 27.
Yet despite this reform, the problems with passing legislation through the Senate have become worse since the 1970s. The filibuster threat is so ingrained in Senate procedure that the majority often brings legislation to the floor only if it has a super-majority, rather than just a majority, of support, making major legislative initiatives nearly impossible. The fact is, the Senate as an institution is a source of obstructionism, anti-majoritarianism, and dysfunctional deliberation. Liberals should therefore consider making Senate reform a central part of their agenda and connect procedural issues to policy questions, as they had done in the 1960s, with the hope of allowing majorities greater power to vote their agenda up or down.
Expecting the worst from the Senate, President Barack Obama and the congressional Democratic leadership decided earlier this year to include the health care legislation within the reconciliation process, which prohibits a filibuster, if an agreement is not reached in October. Reconciliation would require only a majority vote, rather than 60 votes. Obama is not the first president to consider this route; others have used the reconciliation process to secure passage of their budgets, including Ronald Reagan in 1981 and George W. Bush 20 years later. But Obama’s decision to include a domestic initiative of this scale and scope within reconciliation is an ambitious use of this procedure.
While critics have attacked the president for making a Machiavellian move, the reality is that this is more an act of frustration and desperation from the White House, a sense that bold policy innovation is virtually impossible–for the left or the right–in the current legislative process, even with a united government. Regardless of how much support a president and his or her policy proposals command, it is almost impossible to imagine a period with as much legislative policymaking as we saw between the 1930s and 1970s–and yet, given the challenges facing this country, it’s vital that Congress again achieve that level of activity. The current situation is not good for representatives from any political perspective, and it is certainly not good for Congress as an institution.
The most striking characteristic of today’s Senate is that members regularly assume that 60 votes are required to pass almost any legislation. This is new–despite all the criticism of the Senate over the years, for much of the institution’s history simple majorities were sufficient to pass legislation. Filibusters have taken place since 1841, but they had rarely been used before the 1970s. In fact, the greatest burst of legislative productivity occurred between 1932 and 1972, when the older and more onerous filibuster rules were in place. According to the political scientist Sarah Binder, who co-wrote one of the best books on the filibuster, Politics or Principle?, there were only 23 recorded filibusters in the entire nineteenth century, compared with 35 just in the 102nd Congress (1991-1992). The 110th Senate (2007-2008) broke a record for the most cloture motions filed: 142.
The filibuster has become a normalized tool of political combat. There have been more filibusters employed in any given single year since the 1980s than took place throughout all of the nineteenth century. The filibuster is no longer reserved for high-priority measures such as civil rights; during the past three decades, political parties have relied on the filibuster, and the threat of a filibuster, to stifle various kinds of legislation. The political scientist Eric Schickler found that there was an explosion of obstructionism that occurred in the 1970s and 1980s as senators used filibusters as well as other comparable procedures, including holds (a procedure where a particular senator can anonymously stop a bill from being considered) or the post-cloture filibuster (an invention of Alabama Senator James Allen, who opposed filibuster reform in 1975, through which a senator requires roll calls on amendments and procedural motions after successful cloture).
What happened? There was no single reason for filibuster-mania. Most readily apparent is the political realignment of the parties: The Senate of old counteracted party polarization, as the chamber was inhabited by legislators on the left, right, and center who were willing to defy the party leadership and enter bipartisan coalitions. Not any more. Fewer centrists meant that party leaders were more willing to use any tactic possible to block their adversaries. And so partisanship is stronger than it has ever been in the Senate. Demographic changes have diminished the number of centrist voters in either party: Southerners moved into the Republican Party and liberal northeastern Republicans vanished. The number of senators who could be identified as centrists, according to Binder, declined from over 30 percent in 1969 to under 10 percent by the middle of the 1990s.
The phenomenon did not, it should be said, impact both parties equally. The Democrats remain more divided, with a stronger moderate cohort of legislators who continually push their party to respond to the conservative revolution in American politics by mimicking, rather than opposing, what the right has had to say. In an April 2009 article in The New Republic, Jonathan Chait contrasts the difference between Republicans with united government under George W. Bush and Democrats with united government under Barack Obama. Democratic moderates like Senate Budget Committee Chair Kent Conrad, Chait writes, were willing to break with the President and the party within weeks of the inauguration; Republicans didn’t break with Bush until the end of his second term, and then only because he was deeply unpopular.
Binder and her co-author Christopher Smith identified a second reason–that senators started to receive greater political credit from interest groups and constituents for using these tactics to pursue their objectives. And a third reason, ironically, was the reform of the cloture rule itself: The reduction from 67 to 60 encouraged senators to become more comfortable using the obstructionist tactic because it was seen as easier to end and thus less draconian. Fourth, the “track system” promoted by Senate Majority Whip Robert Byrd in the 1970s allowed the Senate to conduct business on other legislation even when a filibuster was technically taking place on one particular matter. Because senators did not have to actually take to the floor in dramatic Jefferson Smith-like confrontations–where they read from Bibles and phonebooks as America waited for Congress to act–but merely threaten to do so, the filibuster became less risky politically.
Remarkably, the scholarly literature on all this is surprisingly scant, especially when compared with that which exists about the House of Representatives. There is an enormous body of literature on the role of parties and partisan polarization in the House, where formal rules that privilege the majority make it easier for scholars to evaluate the impact of parties; there is much less research on the Senate, where parties don’t command as much formal power, so that measuring partisan influence has been more difficult. Often parties influence the floor through informal pressure and incentives that are not easy to see. In this context, Why Not Parties?, edited by political scientists Nathan Monroe, Jason Roberts, and David Rohde, provides a useful update.
The contributors to this volume of 11 essays and an introduction, all written by congressional studies specialists, bring together some of the most critical recent scholarship on the Senate. Kathryn Pearson shows how party leaders privilege members who raised money for the party’s congressional campaign committees by forming leadership PACs. Pearson also finds that Senate leaders relied on their power (which pales in comparison to the House), such as using earmarks in conference committee to reward loyalty and anonymously blocking the legislation of senators who depart from the party line. Democrats and Republicans have even altered their committee assignment procedures to create more opportunities for the leadership to circumvent seniority and provide choice assignments to key players. “Senate leaders’ carrots and sticks are limited,” Pearson writes. “Senate norms are slowly changing, and senators have shown increasing willingness to cede power to their leaders. The chamber’s membership is also changing, and partisans are replacing the ‘good ol’ boys.’”
In their examination of Senate roll-call votes between 1991 and 2002, Jason Roberts and Lauren Cohen Bell find that senators tend to vote with their party unless they are dealing with legislation that is of particular importance to an interest group that threatens to highlight their vote in annual publications. Chris Den Hartog and Nathan Monroe look at how Senate leaders use the technical procedure of motions to table as a strategy through which to kill unwanted amendments from being considered on the floor. The authors recount Senator Jesse Helms, speaking of an amendment of his own that was tabled in 1989, saying that “the Helms amendment, which will apparently be tabled, is pretty much in a fix that a rustler would get into if he was hung and thereafter given a fair trial.”
As a result the Senate now exhibits a level of partisanship similar to the House. But there is, of course, one big difference: It is also an institution where the minority party possesses an extraordinarily powerful procedure for their members to bring the chamber to a standstill on a particular bill. Partisanship is therefore not just evident with respect to roll-call voting, committee assignments, and fundraising, but on matters like judicial confirmations, which have been an arena for partisan conflict ever since the 1987 defeat of Ronald Reagan’s Supreme Court nominee Robert Bork.
These essays represent the strengths and limits of this kind of scholarship. On the one hand, they provide enormous sophistication in tackling particular issues; they take conventional arguments about Congress and test them by using up-to-date methodological techniques to test how and when factors such as partisanship matter in the Senate. On the other hand, the authors tend to lose sight of the big picture. The essays are so concerned with specific questions that can be measured that they don’t connect their findings to bigger arguments about American political development. Which is a shame. The excellent scholarship of these empirically based social scientists could be used to engage in the kinds of debates being conducted by public intellectuals and journalists like Chait.
It is unlikely that the Senate will change soon. The partisanship that has taken hold in the chamber is deep-rooted and clearly can’t be altered by the entrance of a new leader, a new president, or a new majority party. Senate reform is also very low on the political agenda. In the 1950s and 1960s, social movements like civil rights saw that the connections between procedure and policy were integral, and they made these issues central to their constituencies. Today, it is unclear how seriously the progressive movement that brought Obama into the White House wants to make procedural reform a top priority. Certain parts of the movement, such as supporters of climate change and labor reform, have voiced concern about how the Senate operates, but we have yet to see substantive efforts to push for reforms that would diminish the power of the minority to constantly obstruct business. Given that party control of the Senate has switched five times since 1980, with razor-thin majorities for much of this period, each party wants to control the procedural prerogatives of the minority, mindful that one day they will find themselves on the losing side.
But it is at least possible to conceive of change. As the nation grapples with an economic crisis unlike any we have seen for at least three decades, the procedural regime that we have created will be tested like never before. If Senate Republicans decide to take a dramatic stand against Obama’s proposals (at least those proposals that are left out of the budget reconciliation process), it would be possible that interest groups struggling to pass much-needed legislation–such as organized labor or environmental organizations–could make filibuster reform a top priority. They could bring pressure on legislators as the 2010 midterms approach.
This is exactly what happened in the 1950s and 1960s, when Southern Democrats used the filibuster to block the prime objective of liberals, civil rights. One can almost imagine MSNBC’s Keith Olbermann channeling Roger Mudd and beginning his nightly news show with a clock showing how long Senate Republicans had filibustered a second round of economic stimulus legislation as the government released reports on falling home prices and rising unemployment. Even the possibility of reform could be enough to cause Senate Republicans to back down from using the filibuster device on each and every bill.
The Administration learned during its first few months that the institutional design of the Senate has created an environment where the minority can be a powerful opposition force, and united Republicans are particularly effective at using this design against a more divided Democratic Party. While it is true that Democrats will one day be in the minority again, it is worth it for them to think about whether Americans of either party are happy with the kind of Senate that they have had since the late 1980s, an institution where it takes 60 votes to obtain passage of almost any kind of legislation. This is anti-majoritarianism on steroids. Democrats might want to consider taking the risk of pushing for a return to the more majoritarian system we had before the 1990s, one where the filibuster was a powerful tool but limited in use–perhaps by allowing more kinds of legislation to be handled under the reconciliation process–in exchange for accepting the realistic possibility that one day they will be on the losing end of this process.
Democrats can’t afford to ignore how the current legislative process adversely impacts policymaking. Despite the dramatic results of the 2008 election and the eviscerated condition of the GOP, as well as public opinion that reveals support for most of the key Democratic initiatives, Obama had little choice but to compromise with a handful of centrists on the size of his economic stimulus bill and he has not had smooth sailing for his health care or his energy plans. The decision to use reconciliation for health care shows that Democrats are prepared to take bolder procedural action. The resolution of Al Franken’s election to the Senate, which brought Democrats to 60 votes, also slightly diminished the pressure to use reconciliation. But reconciliation can’t be used all the time and for every policy. Democrats, and Republicans, will have to find a way to restore some modicum of majoritarian influence to the Senate to begin revitalizing the decision-making capacity of Congress and to diminish the sense of urgency for using more drastic options–from reconciliation to executive power–to handle the nation’s problems.