The filibuster: let's talk about it

In a discussion with Guy Raz this afternoon on Weekend All Things Considered, after he evoked a chagrining personal admission*, we touched on a point that I think needs to be elevated from a background/insider's issue to absolutely first-tier consideration in mainstream political discourse. It has to do with the distorting and destructive effect of the Senate's modern "60 votes to get anything done" system of operation.

I say "modern" because, contrary to the tone of most day-by-day political reportage, this is not some timeless feature of American constitutional design. In newspaper accounts, you read things like this -- the second paragraph of an (otherwise very good) NYT story today on the struggles over health care reform:

"To get the 60 votes needed to pass their bill, Democrats scrapped the idea of a government-run public insurance plan, cherished by liberals, and replaced it with a proposal for nationwide health plans, which would be offered by private insurers under contract with the government."

Of course, the number of votes the Democrats need to pass their bill is a simple majority -- 51 votes at most. ("At most" because a 50-50 tie would be broken by the Vice President, who of course is now a Democrat.) The reason we talk and act as if "majority" = "60 votes" is that in the past 25 years, something that was an exceptional, last-ditch measure has turned into a damaging routine.

The history here is well known to everyone interested in politics but worth summarizing. For most of the first 190 years of the country's operation, U.S. Senators would, in unusual circumstances, try to delay a vote on measures they opposed by "filibustering" -- talking without limit or using other stalling techniques. For most of those years, the Senate could cut off the filibuster and force a vote by imposing "cloture," which took a two-thirds majority of those voting (at most 67 of 100 Senators). In 1975, the Senate adopted a rules change to allow cloture with 60 votes, and those are the rules that still prevail.

The significant thing about filibusters through most of U.S. history is that they hardly ever happened. But since roughly the early Clinton years, the threat of filibuster has gone from exception to routine, for legislation and appointments alike, with the result that doing practically anything takes not 51 but 60 votes. So taken for granted is the change that the nation's leading paper can offhandedly say that 60 votes are "needed to pass their bill." In practice that's correct, but the aberrational nature of this change should not be overlooked. (The Washington Post's comparable story is more precise: "A bloc of 60 votes is the exact number required to choke off the filibuster, the Senate minority's primary source of power, and the GOP's best hope of defeating the bill.")

Again, this is a very well-explored issue in the academic literature and much of the blog world. For blog and magazine discussions, see here, here, here, here, and here. An authoritative academic treatment came from David Mayhew, of Yale, in his 2002 James Madison lecture for the American Political Science Association. It is available here in PDF and very much worth reading. Sample passage:

"That topic is supermajority rule in the U.S. Senate-- that is, the need to win more than a simple majority of senators to pass laws. Great checker and balancer though Madison was, this feature of American institutional life would probably have surprised him and might have distressed him....

"Automatic failure for bills not reaching the 60 mark. That is the current Senate practice, and in my view it has aroused surprisingly little interest or concern among the public or even in political science. It is treated as matter- of-fact. One might ask: What ever happened to the value of majority rule?

Everything I have mentioned here is familiar, including the fact that this newly-invented "check" was not part of the original check-and-balance constitutional design. But somehow it isn't familiar, in the sense of being part of general understanding and mainstream coverage of issues like the health reform bill. Talk shows analyze exactly how the Administration can get to 60 votes; they don't discuss where the 60-vote practice came from and what it has done to public life. I have a gigantic article coming out soon in the Atlantic -- long even by our standards! but interesting! -- which concerns America's ability to address big public problems, compared in particular with China's. The increasing dysfunction of public institutions, notably the Senate, is a big part of this story. 

As I think my article will make clear, this isn't a partisan question -- even though in any given administration it presents itself as one. (For the record, I support the health-care plan and am glad the Administration found the 60 votes.) Also for the record, as the chart below shows, the huge increase in threatened filibusters came from the Republican minority, after the Democrats took back the Senate in 2007. Since the time covered by this chart, the number of threatened (Republican) filibusters has shot up even more dramatically. Still, whoever is in control, this is a more basic and dangerous threat to the ability of any elected American government to address the big issues of its time. And the paralysis of working through the legislature is all the worse because of the contrast with modern presidents' de facto ability to make war-and-peace decisions essentially on their own.

The point in raising the issue: not that it's a revelation to insiders but that it has to become more broadly known. Plus, check your mailboxes for our next issue.
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* When he began by asking whether I'd been out in our local blizzard, I had to confess that my main exposure was to watch supportively through the window as my wife shoveled the path to the street shown here. In my own defense: she spent her early years in Minnesota and claims to like the snow.