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.
We’ve certainly got the conservative Democrats ready to go; I’m not holding my breath for the return of the liberal Republicans.
Fundamentally the problem is that the Republican party has gone insane. Thus for the purposes of governing, everyone who isn’t insane is being shoehorned into the Democratic party, and thus we end up with more moderates and blue dogs than would be the case if the Republicans were still taking their meds.
It would be a mistake for the Democrats to try and rein in the moderate and conservative members, I think. Right now we are in a precarious spot with only one sane political party, and until this mess sorts itself out, the Democratic party needs to be large enough to represents the views of both Democrats and Independents.
I think the consequences of Republican insanity haven’t completely played out. The crazy-right still views the Republicans as a viable national party, but it is increasingly obvious that the Republicans are turning into a regional party centered in the deep south and some of the plains states. I have suspected for a while that there may be a sort of civil war in the Republican party, but I am starting to reconsider this. The Republican moderates are simply quitting the party and re-registering as Independents, and this serves to magnify the influence of the rabid right making it even more difficult for the moderates to take back the Republican party.
I suspect however that in 2010 and 2012 that we may start to see a 3rd party emerge. How exactly it plays out will depend upon what happens in the nominating processes in each of these elections. If in 2012 the Republicans pick someone like Romney or Huckabee, I suspect the rabid right will split off. And if the Republicans pick someone like Palin as their nominee, then the remaining moderates will probably branch off to form the new party..
I agree with almost everything you say, except for this:
Even without the filibuster, our government has an unusually large number of places where legislation can get killed, not to mention that inability to do anything about major problems within the country is more likely to cause problems for investors than the opposite (at least to my mind).
Sometimes the country has to come together enough to do big things. With climate change, this is one of those times. But ordinarily we’re better off with our Congress unable to fuck things up just because one party has some narrow mandate.
You’ll notice that unmet challenges produce wave elections eventually. And that is when one party has a true mandate. We almost made it last year. What we need is a 2012 like 1972 or 1984. But we shouldn’t lose patience and make it so a Republican return would mean simple majority rule. We can’t risk that. These people are fucking nuts.
The problem is that it will be majority rule anyway when the Repubs are in charge. The Dems simply won’t abuse the filibuster like the Repubs will. So abolishing it creates a level playing field, which we don’t have now. As for the danger of Repubs passing bad legislation, bad legislation can be repealed, but doing so in the face of a filibuster will be extremely hard.
Not true.
At least, not historically true. Bush was stymied by filibusters. That is why the nuclear option was discussed in the first place. It’s not a matter of degree of abuse. The reason the Republicans are able to project this degree of obstruction is only because of their ideological unity. What I am suggesting is that it is that unity, not the senate rules, that are the real problem. The answer is not to answer tit for tat, but to be patient and allow things to change over time.
For now, the rules are frustrating but provide much needed protection against the potential effects of simple Republican majority rule. Right now, the two biggest threats to humanity are lack of stability in Pakistan and the potential for simple majority rule from the American Republican Party.
What major Bush legislation or nomination was stopped by filibuster? The “nuclear option” was intended to and did give the Repubs the best of both worlds: the Dems agreed not to use the filibuster unless a block of Repubs agreed with them, which in effect removed the ability of the Dems to single-handedly filibuster, and Repubs got the filibuster to stay warm for them when they returned to the minority, which they knew, despite Rove’s blather, was where they usually had been for the last several decades.
What major Bushie evils did the Dems preclude with the filibuster? Let’s see — not Iraq. Not patriot act. Not tax regression. Not NCLB (quite the contrary). Not Afghanistan. Not DMCA. Not stem cell research veto. Not “Healthy Forests”. Not some of the worst judges and justices in a century. The list could go on for pages.
I assume there were some good outcomes from filibuster use. What were they?
I think that the big difference comes from the two track system that Byrd used so that other business of the Senate can get done while a filibuster is in place. Historically maintaining a filibuster required the minority to take and maintain the floor of the Senate to prevent the bill from going to a vote.
This is no longer the case in practice. Senators now simply indicate their opposition to cloture and the Majority leader brings up other issues that he wants to get done. That is ok for minor issues, but not for critical policy or appointments.
If Reed decided that order of business for the Senate is the Health Care Reform Act until such a time as a bill is passed it would be much more difficult for the opposition to maintain a filibuster.
We need more conservative Democrats?? I think that’s the dumbest thing you’ve ever written. Somebody been slipping Broder juice into your eggnog?
You might have something if most Senate Democrats were not already conservative by the standards of any other developed country. What you’re prescribing is a permanent roadblock to all social change, forever. As you know, that huge Dem majority is a pipe dream, and even if it came to pass it would just mean more crap creatures of the Lieberman kind. Our problem with healthcare reform — and every other big issue down the line — is not Republicans, it’s Democrats, and there’s no reason on earth to think the “more” would be “better”.
When a country is as far off the rails as this one maybe less stability is what we need. A vague promise of being a better place for Citi and the Bank of China to make money is the most supine excuse for political policy I’ve ever heard.
I don’t buy that eliminating the filibuster would make things worse than they are now. But even if we accept that, the remedy is to make mounting one much costlier than it is now. Like having to stay in the room, for example, or lose the cloture vote. I disagree with pretty much every word in the article, but enough for now. Happy holiday, and I hope you find the Brodertoxin antidote in your stocking, if not much sooner.
I expected this response.
But, what I am advocating is a blurring of the lines between the parties. So, having more moderate Democrats is accompanied by having liberal Republicans again.
The advantage (presuming the overall ideological make-up is constant) is that the minority party at any given time cannot act as a unified bloc. That, more than anything else, enables these procedural roadblocks.
The blurring of the lines is what made the progressive party the party of Jim Crow. Indeed, that was the biggest fault line along which the lines were blurred. It is also logical that parties will tend towards ideological unification to be more effective. Once that is the status quo, it is not clear how you propose to reverse it. Ideological parties are much more the global norm than what the US had for a while. The bipartisan system seemed largely an artifact of the fact that the Republicans had been the party of abolition, which is of little relevance to their current positions.
I agree with the basic thrust of your argument.
I don’t actually propose any action to further what I am advocating. I see it as something desirable, but not something that can or will take place through concerted activism.
It’s an organic process that takes time to evolve.
For example, if the Republicans succeed in winning senate seats in Delaware, Illinois, and New Hampshire while losing seats in Louisiana and Texas, the net result is that both parties will have a caucus that is less united.
While I’d like to win all these elections, if we don’t win them all, I’d prefer to see some blurring. An ‘aye’ vote from a Republican from Illinois is much more valuable than an ‘aye’ vote from Charlie Melanchon in Louisiana. More importantly, a bloc of wayward Republicans makes it difficult for Mitch McConnell to maintain the discipline he needs to wage procedural war. It will usually be easier to convince Charlie Melanchon to vote with us on a procedural matter than it will be for us to get Michael Castle to do so. But if Castle is going to vote for the legislation, while Melanchon is not, then that pattern breaks down.
Now McConnell needs to start poaching Democrats to support his obstruction. This is the only way to move legislation in the absence of supermajorites. While it might seem more effective to have an ideologically pure party, it is actually more important to have a divided opposition. So, short of having the votes to do whatever you want to do, it’s better to have blurring than purity.
But the problem lies with the fact that we’re not losing moderate-to-conservative members of our caucus when this happens; we’re losing liberal members who vote with the Democratic Party almost unanimously.
To put this another way, if Mark Kirk wins in Illinois, it won’t be at the expense of Charlie Melancon, it will be at the expense of Alexi Giannoulias who is almost certainly going to be with us on nearly every procedural vote. The same is true of Mike Castle, Rob Simmons, and the one running in New Hampshire (I’ve forgotten her name at the moment); it comes at the expense of Beau Biden, Chris Dodd, and Paul Hodes; all members who should generally vote with the Democrats on procedural matters.
The Democrats aren’t as liberal as the Republicans are conservative, which means that it probably takes more Democrats to enact liberal legislation than it would take Republicans to enact conservative legislation; meaning that the filibuster requirement disproportionately hurts liberals.
Here’s what I’m trying to say.
If the senate has a given ideological makeup and you can assign the 100 members to each party at random, the Democrats will do better with liberal Republicans than they will with moderate Democrats because it will be easier to prevent filibusters. I think what people are rejecting is the idea that they can ever be liberal Republicans again. But that’ s rejecting my premise, not my argument.
The idea isn’t really to have more moderate Democrats. It’s to have some moderate Republicans joining the Democratic caucus as part of an overall blurring process, where the more important feature is that some liberals are actually elected as Republicans as well.
Well, the problem with that premise is that Senate Republicans also have ways of enforcing Party loyality that the Democrats don’t have (for example, the caucus has far greater control concerning committee assignments compared to the Democrats who still pretty much rely totally on seniority). Republicans can impose party loyality in ways the Democrats simply can’t, which is why even those Republicans will probably be more likely to sustain a filibuster (plus, both parties only really need to have 41 seats to sustain a filibuster, if the Republicans get 45-46 senators (for example), there’s nothing stopping McConnell from releasing 3-4 of his members to vote however they see fit while still sustaining a filibuster.
That’s really why I doubt having more moderate Republicans is going to make much of a difference, especially when they’ll be coming at the expense of our more liberal members.
When have Dems acted as a unified block? The filibuster is all to the advantage of the roboreps.
More to the point, why are you bothering with winsome wishing? If people were smarter there wouldn’t be Republicans. If Republicans bowed to your wishes there would be liberal Republicans. If maple leaves were gold people in Illinois would be very rich.
What frosts me about your whole thesis is that it depends on assuming that the GOP is reacting to a monolithic liberal Dem juggernaut. You know damn well nothing could be further from the truth, but you and Beck could have a good cry over the tragedy of it all. The wingnut insanity didn’t start from some kind of oppression by President Sanders or President Kucinich, for god’s sake, it started under President Clinton The Triangulator and gathered intensity under President Obama The Reacher Outer.
The filibuster has no room for blurring as long as we keep the 2 party system. It will always be a built-in freebe for the Right. We’ll be better off in the long run without it.
Here in CA we require 2/3rds of the vote to pass a budget. Compare our budgetary process to the majority-rule states, or even to the 60-vote U.S. Senate. We are a disaster. Republicans have become a small rump at just over 1/3rd of the legislature, yet they still band together and stop anything from happening when they are not in power.
When the GOP was in power, enough Dems played along to let them confirm appointees and pass legislation. The GOP has no interest in returning the favor (and, ironically, the Dems who most voted for cloture on Bush’s agenda are the ones threatening not to vote for cloture for Obama).
So yes, if the vote was 67 things would have been much worse these past 18 years. If the vote required was 55, things would be slightly easier. And if we required a simple majority, there would at least be more clarity about what the party in power really wants to do, which I think would actually be an incentive for more moderation after voters reject extremist moves.
oops. Second paragraph (“when GOP was in power”) is of course referring to the U.S. Senate, not the CA legislature.
Definitely the number makes a difference. But what the number is, if it is not 51, is arbitrary. There isn’t some correct answer about what the number should be.
I think any filibuster “reform” would have to include the Dems explaining to the nation why such “reform” is necessary. That would mean demonizing the GOP block and that’s something the Dem leadership, from Obama on down, is unwilling to do or incapable of doing.
The ridiculous calls for “bipartisanship” from the White House is part of Obama’s biggest failures in office, especially after what has transpired with the stimulus package. His appointments can’t get a vote, major legislation is bogged down, and nothing is being said or done about it.
Well, they’d have to demonize the DINOs, too. I think that’s much more of a stumbling block.
The problem is that the situation with the filibuster is not as symmetrical as that. The Democrats will not abuse it like the Repubs. Bush never had a filibuster-proof majority, yet he got the bulk of his agenda, and where he failed – as with SS privitazation, immigration reform, and the Miers nomination – it was because the Repubs were not united behind him, not because of the Dems. You’re speaking of what the situation could potentially be structurally rather than what it empirically is.
I think the filibuster is ripe for abolition and actually the Republican right are providing the argument for why it should be abolished. They continually argue that there is a “Liberal Progressive” (Commie, Socialist), Congress and President. They are wrong, because a minority of blue dogs have managed to ensure that Congress remains strongly Republican.
The electorate voted for reform. They voted for that “Liberal” congress. As a result of being held to blackmail by the likes of Bayh, Liebermam, Stupak etc, they are not getting it.
Abolishing the filibuster would allow an administration to deliver on the agenda promised during an election campaign. Wouldn’t that also be a good way of ending political cynicism?