It’s a rare occurrence in modern American political history for the same political party to control both houses of Congress by significant majorities and the same party control the White House under a president who has a fairly fresh and fairly large electoral mandate.
It happened under FDR during the Depression and under LBJ after his 1964 landslide. The results were two explosions of landmark legislation that we refer to as the New Deal and the Great Society.
We have that unusual constellation in Washington now under President Obama and the Dems. Even after Tuesday’s big Republican win in Massachusetts, the Dems control the Senate by 59-41 and the House by 257-178. And, unlike the situation in Minnesota between the Gov. Tim Pawlenty and the DFL-dominated Legislature, the Dem majority in Congress doesn’t have to worry about overriding vetoes.
And yet, after Tuesday’s Massachusetts result, it is universally understood that the health care bill cannot pass except by some sort of extraordinary maneuver and that other ambitious elements of Obama’s agenda probably can’t pass either.
You could say this is because polls show the public doesn’t like the health care bill and is swinging to the right on other issues, but the real, functional direct reason that all the smart people assume that Obama won’t be signing major legislation for quite a while can be summed up in one word: filibuster.
Senate rules enable 41 members to block action that is favored by the majority in both houses and by the president (and by the public, too, for that matter). Under the current configuration of rules, numbers and political culture, it is time to consider whether the filibuster renders America ungovernable.
First, let’s get a couple of basic facts on the table. The filibuster is not part of the Founding Fathers’ sacred scheme of checks and balances. It does not go back to the beginning of the republic.
The Senate never really decided to create the right to filibuster so much as it accidentally created it and has never summoned the supermajority necessary to remove it. The filibuster is not vital to the democratic process. (So far as I know, no other major developed democracy has a comparable barrier to majority rule.) It is not now, and never really has been, about ensuring a full debate. And it is not fundamentally a delaying tactic. It doesn’t just slow a bill down; it stops it cold (if you have 41 senators willing to stick together to stop it and if it cannot be smuggled through by some tricky maneuver such as “reconciliation” or “the nuclear option”).
Let me try to back up some of those conclusory statements:
No fingerprints of the Framers
The Framers were concerned about tyranny of the majority and built several checks and balances as safeguards into their governing scheme. Two houses — one with short (two-year) terms and one with staggered, longer (six year) terms, to ensure that a sudden passion of the populace would have time to cool off before it obtained a governing majority in the Congress. A president, chosen by the jury-rigged Electoral College mechanism, would bring another, independent judgment to any piece of legislation: the prez could veto the bill, subject to override but only by a two-third supermajority in both houses. (The framers discussed allowing the Congress to choose the president, the way a prime minister is chosen in the parliamentary systems. But they didn’t want him beholden.)
By these measures, taken together, the framers wanted to make it hard, but not impossible, for national laws to be created. And they did. By the standards of democratic systems around the world, ours is perhaps the hardest one in which to make laws. (The Supreme Court may belong in the paragraph above also, as another barrier to the congressional majority doing whatever it wants, although I’ve never been too clear on how the Framers intended the Supremes to function. Judicial review of legislation may have been more an invention of Marbury vs. Madison than it was part of the original plan.)
Nowhere in the Constitution, nor the records of the convention, nor the Federalist Papers nor the papers of any of the Framers, was it ever suggested that on top of all those hoops and hurdles, an ordinary bill should also require a supermajority in the Senate.
And the Framers knew how to call for a super-majority when they wanted to make it extra difficult to do something. They did insist on a two-thirds vote in the Senate to ratify a treaty or to convict/remove an impeached president or to refer a proposed constitutional amendment to the states. But they didn’t call for a super-majority to pass a bill, unless it had been vetoed by the president. Checks and balances: big part of the Constitution. Filibuster: not.
The only way to associate the Constitution or the Framers with the filibuster is to note unremarkable language in Article I, Sec. 5, which states that “each House may determine the Rules of its Proceedings.”
Oops, I just accidentally created the filibuster
Of course, both houses did assemble some rules, including in both houses a rule that enabled a member to call for a vote on “the previous question.” This permitted a majority — of either house — to end debate and force an up-or-down vote on a bill. I rely for this section on Congress scholar Steve Smith (who lives in Minnesota but works at Washington University in St. Louis) and who, along with Congress scholar Sarah Binder (senior scholar, Brookings Institution), wrote a book-length history/analysis of the filibuster.
The first set of rules were created over the first two decades of Congressional history and, in 1806, the Senate decide to compile them all and adopt them as more of a rulebook. The committee that was assigned this task apparently failed to pick up the existing “previous question” rule.
Smith said there is no historical evidence that the committee members did this on purpose or were aware they were doing it. But when the Senate adopted the committee’s work, all rules not in the committee’s draft were eliminated. This is why I wrote above that the Senate didn’t intentionally create the filibuster.
And the Senate has never had any problem allowing all members to genuinely express their objections to a bill. But the lack of a mechanism for cutting off debate eventually led some senators to realize, starting in the 1820s and ’30s, that by insisting on perpetual debate, they could prevent a final vote on a bill they opposed. Thus was born what came to be called the filibuster (the word derives from a Dutch term “vribuiter” or “freebooter.”)
In the early days, there was no cloture rule at all and a filibuster was bound to succeed as long as the freebooters were able to pirate the Senate floor.
Filibusters were not common and were often organized more on a regional than a partisan basis. Mostly, for more than 100 years, filibusters were tainted by racist motivation — in the 19th century to prevent northern interference with slavery, in the 20th century to block civil rights legislation.
Warning: Plot spoiler ahead
Perhaps the most glorious use of the filibuster was one that didn’t happen in real life. In director Frank Capra’s 1939 classic political comedy “Mr. Smith Goes to Washington,” the idealistic young Sen. Jefferson Smith holds the floor in a one-man filibuster to prevent passage of a corrupt bill until, at the last second, his corrupt colleague is so ashamed of himself that he confesses his sins on the Senate floor, the bill is killed, and the Boy Rangers get a national camp!
And eye for an Aye
This seldom happens on the real Senate floor, but a real-life Capra-corn dramatic moment and happy ending did occur in possibly the greatest case of a defeated filibuster. Cloture was invented by Senate rule in 1917, but in those days it required a two-thirds vote, higher than the current three-fifths.
Every anti-civil rights filibuster had succeeded until 1964 when Minnesota’s own Hubert Humphrey assembled the 67 votes needed to break the southern filibuster of the landmark Civil Rights Act. But Humphrey, floor manager of the bill, needed every vote, including that of Sen. Clair Engle of California, who was dying of a brain tumor and could no longer speak. (In the Senate, they vote by voice.) When the clerk called for Engle’s vote on the cloture motion, he pointed to his eye, to indicate that he was voting “aye.” I am not making this up.
Still, the filibuster has been around for almost two centuries now and it has hardly rendered America ungovernable. But three aspects of recent U.S. political culture magnify the problem.
The three culture pieces
Washington megapundit (and Minnesota native) Norm Ornstein of the American Enterprise Institute wrote in Roll Call yesterday that “the problem now is less the rules and more the culture. The filibuster was never in its history used routinely as an obstructionist tool; it was always reserved for issues of great national moment, where a minority felt especially intensely; the application for less momentous issues was only an occasional phenomenon. Now it is routine.”
The second cultural piece is the new style of partisanship. In 1964, the filibusterers were southern Democrats, but the cloture coalition that Humphrey put together was comprised of Republicans and Democrats (more Republicans — including some of the most liberal senators — than Democrats ended up voting for the Civil Rights bill). Smith emphasized to me yesterday that the parties have sorted themselves out into much tighter ideological blocs and they vote together much more rigidly.
The reason Scott Brown’s election in Massachusetts was such a big deal is that it gives the Republicans the 41 votes they need to stop almost anything and they are much more likely to stick together and do so in today’s culture.
In the age of the permanent campaign, the out party tries to deny the in party anything that might make them look good or that the ins could claim as an accomplishment in the next election. It may seem obvious, but it wasn’t always thus.
In the health care mega-example, Republicans were not negotiating with the Dems or the White House for concessions or compromises that might enable them to vote for the bill. With a couple of possible exceptions (that in the end didn’t materialize into rank-breakers), the Senate Repubs were united in the goal of killing the bill.
At the moment, it’s hard to see how this won’t apply to other major Obama initiatives, and after the midterm elections, it will likely be easier for the Republicans to kill more bills. This is how it tends to work in the parliamentary systems, where party unity is traditionally stronger. But those systems don’t have filibusters and the majority can pass its program.
It is these three aspects of the current political culture, wedded to the filibuster rules, that raise the possibility of — to coin a hideous word — ungovernability.
Dems don’t have clean hands
I can easily imagine that this whole diatribe (I’ll be done soon) must seem to conservatives and Republicans as partisan whining by liberals and Dems, heartbroken over the big Coakley loss and the threat to the big health care bill.
Personally, I have viewed the filibuster as undemocratic (small d) for years and moreso now that I’ve studied its accidental and inglorious history. But I’m well aware that when the Dems were in the minority in the Senate in the middle Bush years, they filibustered dozens of Bush judicial appointments. The Repubs claimed this was unprecedented (it wasn’t, the Repubs filibustered LBJ’s nomination of Abe Fortas to be chief justice, but they say that was different). But still, the Dems, horrified at approving lifetime appointments for all those “loyal Bushies,” did it far more than ever before.
Of course, that episode made hypocrites of both parties. Repubs were so outraged by the filibusters that they threatened the “nuclear option,” taking advantage of their control of the vice presidency to change the Senate rule by a friendly but clearly incorrect ruling from the chair.
Dems denounced the nuclear option then. Then-minority leader Harry Reid said at the time that a vote to preserve the filibuster would be “a vote to uphold the constitutional principle of checks and balances.” He may have a rethink about that now, and if he indicates he’s considering some version of the nuclear option, I suspect the Repubs will decry the assault on the Constitution. (Did I mention that this has nothing to do with the Constitution?)
What is to be done?
Personally, I don’t see what can be done. Ornstein mentioned some tweaks in the way filibusters work, but they seem small. And anyway, if you could change the rules to make filibusters less common or less effective, you could just do away with them. But, if you don’t go nuclear, it takes a two-thirds vote of the Senate to change the rules. Why would the minority ever go along such a change?
Freshman Dem Sen Jeff Merkley, who has been quite vocal about the need for filibuster reform, has an idea for finessing that problem. It sounds utopian, but maybe it’s a start.
Merkley suggests that whatever new rule you come up with to dilute the power of the filibuster, you set the effective date six to eight years into the future, so the senators voting on it wouldn’t know which party would be in control when the new rule kicked in.
The US system of checks and balances is designed to ensure any one group – be it the executive, legislative, or judicial – cannot dictate legislation to the nation as a whole.
But it was also designed that the large population states would not force their will on the smaller population states. If the US had a unicameral legislature that was based solely on population it would enable bills to be passed faster, but remove the need to compromise on legislation for that bill to be passed.
Additionally, it would also allow the larger population states to dominate the legislative agenda and potential benefit themselves over their less populous nature.
Ultimately, the Senate was designed to be a compromise between the large population states and their smaller counterparts so that all voices could be heard.
I’m afraid that any party that comes up with a candidate as vile and evil as Coakley does not deserve a super majority. I hope everyone reads up on the terrible judgment Coakley has exercised in the past–for example, releasing on his personal recognizance a man who allegedly molested a toddler with a curling iron. (He was later found guilty.)
Also, Brown is quite progressive. Probably more so than Obama. He supports the Massachusetts health care plan which mandates purchase of health insurance, for example.
If the Dems had not been so arrogant and had passed REAL health care reform, not these insurance company windfall bills last summer, as they should have, the Dems would not have lost their super majority. How about Medicare for all? That’s the kind of real reform the people want.
Personally, I’m hoping Amy Klobuchar is the next Dem senator on the way out of the door. Her performance on the health care issue is manipulating and atrocious. And I voted for Amy and for Al Franken. Nothing like realizing I voted for two betrayers of the middle class–who hurry out to Washington to vote for more profits for big health insurance corporations.
Amy and Al hardly seem like instances of “Mr. Smith Goes to Washington” to me. They seem more like “The Snakes Slither”.
“Still, the filibuster has been around for almost two centuries now and it has hardly rendered America ungovernable.”
The current “filibuster” has not been around that long. It used to be that it took two thirds of those present and voting to end a filibuster. But those who wanted to filibuster had to actually continue talking, not simply say “filibuster”.
I think the spectacle of Republicans (or Democrats) reading the dictionary on the floor of the Senate for weeks at a time on issue after issue would be political suicide. Holding party discipline for that spectacle would be impossible.
“Ungovernable?” The Government will go on just fine without 60 votes of either party. “An inability to make a sweeping change to a large segment of our society, economy, or moral understanding?” That’s more like it. And I’m not picking on health care. Insert social security reform, cap & trade, whatever!
And that’s the great part of America. While we are a Democracy where majority rules – they must do so in the confines of significant minority rights.
I a beginning to wonder what the point of elections is. I am very clear on the concept that when the people I support lose elections, the policies I support will not be implemented. That seems only fair. But what I do not understand is that the policies I favor are not implemented when the people I support win elections.
When you get ddown to it, wouldn’t the time and money I devote to the political process be better spent on dinner and a movie?
@#2 Ms. Hoover:
Some of the problems with elected officials, tend to be representative of who put them in office rather than who they are. For example, one reason why a lot of politicians act in a way that I do not like is simply because that is what their constituents want, and either they are actively trying to represent their constituents or their constituents chose them because of their positions. If I don’t like the way that the Republican party is acting, then ultimately on some level I really fault the constituents for voting them in rather than the politicians for representing them.
Some of the problems with our elected officials come from the fact that they have a really tough job. They have to work together with a diversity of people who all represent different interests in order to come up with legislation that everyone can agree one. They have to make compromises to get anything done at all, yet they are vilified for it. They are expected to make decisions on a wider range of issues than most people could possibly hold in their heads all at once, yet they are criticized for not knowing and having personal expertise in everything that they vote on. They are expected to do all of these things while remaining accessible to the people in their districts/states. And furthermore, during this process they have to be continually raising money and selling themselves just to hold their jobs.
In fact, by one measure, politicians generally do a pretty good job: people tend to like their own representative, which is part of why most incumbents tend to be untouchable; it’s all the other guys in Congress that they don’t like.
So I guess what I am getting at is: by all means hate the system, hate our unreasonable neighbors, and hate the frustrating fact that politics involves getting people who want different things to work together, and all of the messiness that involves. But I don’t personally think that there is much merit in hating on the individuals who work on our behalf within Congress, and replacing all of them isn’t going to change the inherent messiness of the process or, as someone once put it, the “unpalatability of my neighbor’s opinions”.
In a way, I am actually really grateful that my representative is the one doing all of this hard, messy work, so that I can instead take on the far easier job of pursuing my own recreational activities!
Hiram,
Should you lose your rights if you lose an election? Should you be able to deny someone else’s right simply because you win?
Elections decide a lot – but when you re-define someone’s rights, thankfully it takes a bit more than winning an election.
Some numbers–
52.7 percent of the voters in MA constitutes a mandate for Scott Brown and a major statement about the mood of the country, but ….
59 percent of the votes in the Senate is not a mandate to pass legislation.
“In the age of the permanent campaign, the out party tries to deny the in party anything that might make them look good or that the ins could claim as an accomplishment in the next election.”
If the reason they won’t work across the aisle is because they’re worried about reelection I’d say it sounds like a great argument for term limits. We elected them to work for the good of the people, not to get themselves reelected.
Should you lose your rights if you lose an election?
No.
Should you be able to deny someone else’s right simply because you win?
No.
So your point is?
Ornstein: “The filibuster was never in its history used routinely as an obstructionist tool; it was always reserved for issues of great national moment, where a minority felt especially intensely…”
Exactly. We conservatives feel “intensely” about allowing the government to take more control over our lives, especially in regards to health care.
I love the filibuster! The problem is that the majority is too wimpy to call the bluff of the minority threatening the filibuster. Regardless of what party the majority is.
If the Dems feel so strongly about this health care bill … if all 59 of them think it’s the greatest bill ever and are willing to stand up for it and put their re-election on the line … then call the GOP’s bluff and let them filibuster. If the bill is what the country wants, then the GOP will eventually have to back down after a week or two of reading the dictionary … and/or face huge losses in the next election.
What’s obvious is that not enough Dems like the bill to go out on the limb. In fact, that’s why two of them had to be bought.
Start over, come up with a better bill. And come up with a bill that tackles a few issues and is a few dozen pages long … not a hundred issues. You’re going to get more support when you try to fix one problem that most of the country thinks needs fixing. One problem at a time.
Ed–
Ornstein is talking about Southern segregationists attempts to block integration. I hope you’re not grouping yourself with them!
And the problem in trying to address one issue at a time is that health care is a system — you can’t change one part of it without making other changes.
For instance, you can’t simply require that insurance companies accept all applicants regardless of medical history — that would drive up costs prohibitively.
Therefore, requiring coverage requires a corresponding requirement that young healthy individuals not be able to opt out until they need coverage; requiring that everyone participate in the system is the economic price for requiring that everyone be covered.
It’s not just the filibuster that will slow or kill the health care bill.
The House Democrats held a closed door session today in D.C. to discuss the Senate bloated version of the bill. After the meeting, Speaker Pelosi told reporters “In its present form without any changes I don’t think it’s possible to pass the Senate bill in the House,” adding, “I don’t see the votes for it at this time.” She referred to the Senate’s tax on higher-cost health plans as “problematic”.
Thank you eric thank you. You need to return to this subject on a monthly basis because it is so important. When the Virginia compromise occurred the largest state was 10x the size of the smallest. Now California is 69X the size of the least populous state. Ever wonder why South Dakota has hwy 12 from the mn border to aberdeen sd as a newly built four lane with traffic that is probably 1/1000 of what our metro area interstates handle? Our fragile democracy is cracking and is in danger in many ways yes I am thinking it is becoming ungovernable.
First: Great Read, article and comments alike.
Second: @ Ed
It seems you’d be referring to rules in Minnesota mandating that a bill be germane unto itself. I think this would be great to move to the federal level, no more Hate Crimes legislation with Department of Defense appropriations bills. Still, complex issues (Health Care, Social Security, etc…) often demand complex solutions.
That said, a lack of germane requirements have allowed for great things at the federal level (Hate Crimes legislation passed!).
As a subscriber needing to re-up …. where else do you find the quality of thought and writing up to the consistent work of Erik Black, Doug Grow, Amy Klobuchar’s dad 😉 and other’s who make MinnPost a valuable news subscription to maintain, help expand?
I read MSM articles, and i read how one side or the other spun it to the reporter, who asked no probing questions in follow up … so we hear the party drivel, frequently out of range of reality altogether.
Then there’s the MinnPost core of some of the best journalists who seem to ave survived (so far) the chaos of media organizations falling apart, redefining business models.
This site uses fair editorial control, and has among the best of the sage writers in metro Mpls/StP, reputations built on decades of quality thought and writing.
MinnPost is a high-quality, informative organization. If you don’t contribute money to support MinnPost, it’s time to reconsider and kick in what you can.
“Mostly, for more than 100 years, filibusters were tainted by racist motivation”
Forgive me, but what has changed? Who wants President Obama to fail and why?…
A Gallup Poll today (01/22/2010):
“PRINCETON, NJ — In the wake of Republican Scott Brown’s victory in Tuesday’s U.S. Senate election in Massachusetts, the majority of Americans (55%) favor Congress’ putting the brakes on its current healthcare reform efforts and considering alternatives that can obtain more Republican support. Four in 10 Americans (39%) would rather have House and Senate Democrats continue to try to pass the bill currently being negotiated in conference committee.”
http://www.gallup.com/poll/125327/Majority-Favors-Suspending-Work-Healthcare-Bill.aspx
Peter: Maybe, it is not about the President; maybe, it is about the people. Should the 59% of the Senate in favor of pushing the health care bill through, supported by only 39% of the people, give the President his success?
Point 1: EXCELLENT REPRISE of the filibuster situation. The only thing it lacks is a statistical summary of how many times dems (or their predecessors) have used it vs repubs (or theirs), to provide some perspective.
Still, I cannot agree with the conclusion that to modify the filibuster would be a good thing. It has stopped bad legislation, I believe, as often as it has stopped good. And for any minority, it is often the sole weapon against the kind of blind ignoring of their ideas that the health care bills illustrate.
One cannot call a “discussion” where any substantive objection is dismissed out of hand an “opportunity to participate.” “Let’s discuss how you can be persuaded to allow me to keep beating you” would not be considered fair by any wife.
When a union or a school district finds completely closed minds on the other side of the table a strike is likely to occur. No-one says that is an unfair use of power (except that in Minnesota it is strange that the school boards pay a penalty while the union goes scot free). The filibuster is just the legislative equivalent of the strike: you pay a price, but you get your voice heard loud and clear.
(#6) Richard Schulze: Eloquently put.
(#8) Paul Brandon: But it would be, if EB has his way.
(EB):”In the age of the permanent campaign, the out party tries to deny the in party anything that might make them look good or that the ins could claim as an accomplishment in the next election.”
Sorry, but this seems to me to be a very slanted view of the mindset of the opposition, because it rules out that they might actually be sincerely convinced that a bill in its entirety and its parts is bad for the nation and/or for their constituents.
In the case of health care, election or no, if I were in congress I would be firmly opposed to the present health care bill on its merits. But this statement implies I am denied that honest conviction and branded a simple obstructionist. Not fair or honest.
(#11) Ed Stych says: “What’s obvious is that not enough Dems like the bill to go out on the limb. In fact, that’s why two of them had to be bought.”
While firmly opposed to the current health care bills in congress, a part of me says “Let them have their bill” because I believe it will surely mean loss of majorities in at least one house of congress. I think, however, that if forced to vote after Massachusetts, there would not be enough dems left to pass health care as it stands with even a simple majority: if the leaders are not listening to the public, it is a wake-up call for those facing reelection.
(#12)Paul Brandon says: “Therefore, requiring coverage requires a corresponding requirement that young healthy individuals not be able to opt out until they need coverage; requiring that everyone participate in the system is the economic price for requiring that everyone be covered.”
Agreed that health care is complex, and the rule of unintended consequences applies. But I see no reason why the two related issues you cite could not go into a one page bill together.
The founding fathers wanted it to be hard to make and change laws. That is why we have three branches of government and our system of checks and balances. Five years ago the Republicans were complaining about the Democrats’ use of the fillibuster, insisting that judicial nominees be entitled to an “up or down” vote, and five years from now we may again see the Republicans decrying the Democrats’ use of the fillibuster. We should not, and we are not going to, change the fillibuster rules.
The problem, to the extent there is a problem, is (as Ornstein points out) that the fillibuster is no longer reserved for significant issues, but it a routine obstructionist tool. You can blame the Republicans for being obstructionists, but since the Democrats have decided to roll over every time they can’t round up 60 votes, why shouldn’t they be? The Democrats need to make the Republicans pick their battles. They need to actually make them show up and fillibuster. They need to make the Republicans decide whether the votes are so important that they are willing to stay up all night and miss trips back home to get their way.
You should interview Mondale about the 1975 ruling. Maybe also some post 1972 democratic leaders.
The filibuster supposedly addresses concerns of the minority. The people? With health care the real minority seems to be the uninsured, the under-insured, those who get denied health insurance, those who lose their health insurance, those who as a result need to declare bankruptcy, and those who live diminished lives or die for lack of health care. These people constitute a significant minority. In what way, if any, does the power of a filibuster help this minority in the foreseeable future considering decades of political stalemate? Could our Constitutional Founders have ever envisioned such immorality?
(#23)Terry:
I think you are absolutely right about the minority involved in health care.
However, I fail to see how limited legislation which:
>prohibits denials and price discrimination,
>mandates transportable coverage,
>limits punitive damages in medical malpractice suits
>puts in place a major medical plan that prevents bankruptcy by limiting out of pocket to a fixed amount, and
>provides for help in paying premiums to those who can show financial hardship
would not address these problems. If each piece was in a separate bill it would be hard to festoon it with pork, and harder still to vote “nay” in the face of strong public support.
And these steps could ALL be done without a trillion dollar price tag. I suspect faced with individual bills a number of repubs would support each.
The US Senate is arguably the most undemocratic and disfunctional legislative body in the nation. As used in the past decade, the filibuster is nothing less than a tool to overturn the results of the previous general election.
No one questions the need to protect minority rights in a country that is as large and diverse as ours. At one point of time or another, we are all part of a minority whose voice needs to be heard. Perhaps one solution would be to permit the minority leader to designate three bills at the start of each session of Congress that would be subject to a delay of up to a year. But there would ultimately be a debate and vote on every bill reaching the floor.
When faced with a similar problem, the British (in the form of the Parliament Act of 1911) removed the ability of its “upper” chamber to block the enactment of legislation. Do our senators want to go down that road?