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The filibuster and rendering America ungovernable

After the Massachusetts election, the reason smart people assume President Obama won’t be signing major legislation for quite a while can be summed up in one word: filibuster.

Jimmy Stewart in 'Mr. Smith Goes to Washington'
Jimmy Stewart as Sen. Jefferson Smith filibustering in “Mr. Smith Goes to Washington.”

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.

Sen.-elect Scott Brown
REUTERS/Adam Hunger
Sen.-elect Scott Brown

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.

Hubert Humphrey circa 1968
Courtesy of the Minnesota Historical Society
Hubert Humphrey circa 1968

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.”

Norm Ornstein
Norm Ornstein

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.