I really like Ezra Klein’s piece on the history of the filibuster. He uses the example of the passage of Medicare. An internal document from the LBJ administration shows that the administration went into the battle to pass Medicare thinking that they had 55 potential votes in favor. At the time, it required 67 votes to overcome a filibuster, but this document doesn’t mention filibusters at all. It assumes that, with 55 votes, passage of the bill is assured. In the end, the bill won the support of 68 senators, but that was not a parliamentary requirement; it was merely a result of momentum for reform.
The Senate lowered the cloture threshold to 60 votes in the 1970’s, but that seems to have backfired. In making it easier to achieve cloture they simultaneously made it easier to sustain a filibuster. I know that seems counterintuitive, but it clearly happened. Somehow the country learned to accept the casual use of filibusters. Partisans in the minority now demand filibusters for anything that can pass at 51 but doesn’t have the support of sixty members. It wouldn’t have been realistic to demand filibusters for legislation that had the support of 65 senators, but it seems to present few problems for legislation that only has the support of fifty-six.
My best guess as to why this happened is that social issues like abortion and gay rights polarized the nation and the parties and made the judiciary a life or death struggle. From each party’s point of view, the other side’s judicial appointments are wholly unacceptable, leading to a battle to deny confirmations to the bench. This then extended to more mundane legislation, until it became a tool the minority is expected to use for virtually everything.
In this Congress, this practice has been extended to denying unanimous consent to almost anything the Majority Leader wants to do. Wasting legislative days is a strategy in an of itself. So, it took a month to pass the extension of unemployment benefits even though the final vote was 98-0.
Whether the cloture threshold is set at 67, or 60, or 55 is somewhat arbitrary. The Democrats can certainly change the number. But I don’t think it’s the number that is broken. What’s broken is something totally different. Looking back, the only time the filibuster has really been abused in this country was in the effort to preserve the Jim Crow South. We, evidently, have reached a similar point of political polarization. I don’t think this is because Barack Obama is a black man, although that contributes somewhat to the alienation Republican base voters are feeling. What’s really going on is that there are two political bases in this country that do not see each other as legitimate. And then there are a bunch of apathetic people who hate those party bases and can’t understand why they can’t work together to get anything done.
Getting rid of the filibuster would arguably make things even worse. As power shifted between the parties, huge shifts in law would become normal, making our country a much less stable place, and a much less attractive place to invest or do business. A better solution than ditching the filibuster is to get back to a place where there is significant regional and ideological overlap between the parties. Filibusters really can’t be mounted successfully unless the two sides are largely lined up by party. So, yeah we need more conservative Democrats and more liberal Republicans. Short of that, we need a huge, filibuster-proof, enduring Democratic majority.
