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Don’t blame the U.S. Constitution for the filibuster

The filibuster was not created by the Constitution. It’s become a problem because of new political norms.

MinnPost illustration by Jaime Anderson

One in a series of articles. You can read the whole series here.

I’ve mentioned the filibuster several times in passing. Some reader comments over the course of this series have identified the filibuster as the single greatest source of gridlock in our system of government. I mentioned recently that there will likely be a challenge to the existing filibuster rule in January on Day One of the new Senate session.

Both houses of Congress should guarantee a full, free and fair debate about any proposed legislation. But – notwithstanding those who suggest that the filibuster has something to do with it – the filibuster is not about full debate. It is about preventing a final vote on a bill that the Senate would otherwise pass by simple majority vote. No other national legislative body in the world allows a minority to so easily block the will of the majority.

In the interest of keeping it real, filibuster dislikers should acknowledge that the filibuster is the key explanation for gridlock only when one party holds the White House and majorities in both houses of Congress. This happens. But in recent history, it happens seldom. It is not the case in the current Congress, nor will it be true in the next Congress. For the past two years, the Democrats held the White House and a small majority in the Senate while the Republicans controlled the House. Same for the next two years. In those circumstances, it is the bicameral nature of Congress itself that produces gridlock unless the parties compromise to get things done.

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But I focus on the filibuster today mostly to comment on a tripartite analysis of why U.S. government struggles to get things done, especially recently.

Filibuster hasn’t always been a problem

The filibuster was never used as frequently as during the first half of President Obama’s first term. In their 2012 book “It’s Even Worse Than It Looks,” Tom Mann and Norm Ornstein documented how — from the time the Democrats regained the Senate majority in 2006 — the Republican minority led by Sen. Mitch McConnell made unprecedentedly frequent use of the filibuster to block action.

From a typical year in the 1960s, when there were about 15 filibusters a year, the number is now well over 100, according to “It’s Even Worse.”

Senators have used the filibuster tactic and the related practice of placing “holds” on nominations — in many cases when the senators behind the filibusters and the holds would eventually vote in favor of the bill or the nomination in question — for the obvious purpose of slowing down Senate action and denying accomplishments to Democrats.

The filibuster doesn’t fit easily into this series because (although many people seem to think otherwise and often revert to irrelevancies by citing the intentions of the Framers when defending the holiness of the filibuster) the filibuster was not created by the Constitution.

Defenders of the filibuster, seeking to associate the stalling tactic with the Framers, often quote an apocryphal conversation between George Washington and Thomas Jefferson. According to the legend, Jefferson (who was not at the Constitutional Convention but joined the Washington administration as secretary of state) asked Washington (who had presided over the convention) why the Framers had created the Senate. Washington replied that just as Jefferson (who was drinking tea at the time, according to the legend) might pour his hot tea into the saucer to let it cool, so “”we pour legislation into the senatorial saucer to cool it.”

Imperfect Union: The Constitutional roots of the mess we're inAlthough it is done all the time, citing the “cooling saucer” anecdote as support for the filibuster is historical rubbish. The Framers never heard of the filibuster.  Filibusters arose by accident in the first half of the 19th century long after the ink was dry on the Constitution.

If Washington ever made the “cooling saucer” remark, he could only have been referring to the very unusual six-year staggered-terms feature of the U.S. Senate. If a sudden passion for a particular law blew across the country one year, the voters might quickly choose a whole new House of Representatives committed to enacting that law. But it would take much longer – perhaps as much as three elections – to replace the whole Senate. That (along with the fact that senators would not be directly elected by the voters) would be the only things that Washington could have been talking about. 

So it wouldn’t require a constitutional amendment to abolish or modify the filibuster. The Constitution comes into the story only indirectly in two ways. 1. The Constitution explicitly empowers each house of Congress to adopt its own rules. 2. Because the Framers decided to go with a bicameral legislative branch and require that all laws must pass both houses, it inadvertently (once the filibuster came along) created a situation in which a minority of senators can frustrate the will of the majority of both houses and presumably of the electorate, even after the saucer had cooled and every possible argument had been offered on the Senate floor.

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So, while the filibuster arose within the confines created by the Constitution, it would be a stretch to pin the filibuster on the Framers.

Tripartite?

A political culture – such as the recent U.S. political culture of hyperpartisanship leading to gridlock – is formed on (at least) three levels of factors.

First, there are structural factors, the most solid and hardest to change, or at least to change formally. In the case of U.S. political culture, that would primarily be the stuff that’s in the Constitution, you know, the three branches of the federal government, the two Houses of Congress, how a bill becomes law — that stuff. But our structure is full of choke points that provide more ways for a bill to NOT become law than any other system of government in the world. Formal changes in the structure require an enormous supermajority to amend the Constitution. (Amendments will be the subject of the next installments of this series.)

Second, there are rules and laws adopted within that structure (for purposes of this discussion, that would include something like the filibuster rule). Rules and laws are formal, and fairly stiff, but easier to change than structural factors. In the case of the filibuster rule, it would take either a two-thirds vote of the Senate or a successful use of the so-called “nuclear option,” under which a Senate majority, with the cooperation of a friendly presiding officer, might succeed in changing a Senate rule by a simple majority vote, especially on the first day of a session. We’ll see what happens in January.

But the third and most mysterious factor is something that we might call norms. Norms are unwritten rules that seem powerful and tell members of a group how to behave until all of a sudden someone violates them and, if they get away with it, the norm can change.

From the time of George Washington to roughly the 1890s, it was considered unacceptable for a presidential candidate to do anything to publicly campaign for the job or make any utterance to suggest that they believed they would be good for it. Abraham Lincoln didn’t attend the Republican convention that nominated him in 1860 (even though it was held in Illinois). After he was nominated, he didn’t make a single campaign speech. Like many of the candidates, Lincoln did plenty from behind the scenes. But they didn’t give speeches or make campaign promises. No formal rule or law prohibited it, just a powerful norm.

Then, sometime after the Civil War, the norm started to break down. By the 1890s, Dem nominee William Jennings Bryan traveled the country by train, orating at every stop. The norms had changed and now we can hardly imagine a nominee whose campaign consisted of sitting at home, entertaining small throngs of visitors with tea and cider and declining to say anything about his policy positions.

Filibuster norms changed

Since the accidental birth of the filibuster, there was never a rule that limited how often a senator could filibuster a bill or put a hold on a nomination. But the norms of the Senate told them not to do it too often or it would damage their reputations.

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That norm obviously changed in the current environment.

Both parties have a story they can tell, with the use of selective memory, about how the other side started the slide down a path to near-total partisan combat in the Senate. During the George W. Bush presidency, Democrats made unprecedented use of the filibuster to stall appointments of conservative nominees for federal judicial positions. The old norm held that senators didn’t filibuster judicial nominees over ideological differences. But there was no actual rule against it. Back then, it was the Republicans threatening to change the filibuster rule and Democrats who were howling about preserving their filibuster prerogatives.

Political norms can change when the political environment changes. The recent political environment is heavily influenced by the fact that we have two parties that are very equally divided. Partisan control of the White House and both houses of Congress has been swinging back and forth much more often than has been historically normal and – except for a brief period in 2009-10 – no party has held a filibuster-proof majority in the Senate.

The parties have also become far more ideologically coherent and movement along those lines still continues. There used to be liberal and moderate Republicans in a basically conservative party. Then the liberal Republicans went away. Now, the old-fashioned, swing-voting moderates are disappearing from Congress. Likewise, for about a century after the Civil War, the Democratic Party was a big coalition of relatively liberal northerners and southerners who were conservative on many issues, especially civil rights. Coalitions, comprising members of both parties, formed around specific bills or projects, often opposed by coalitions also comprising members of both parties.

Now, the most moderate Republicans are to the right of the most conservative Democrats and bloc-voting along party lines has become the new normal. There is little ideological middle ground around which compromises can thrive.

During the two-year Republican campaign to repeal the Affordable Care Act (aka Obamacare), it was a major Republican talking point to describe Obamacare as an act of pure partisanship on the grounds that not a single Republican had voted for it. Actually, Obama and other Democrats tried to find out what kind of changes in the bill would attract Republican support. Eventually, it became clear that no such deal could be struck. Even Sen. Olympia Snowe of Maine, one of the most moderate of Senate Republicans, after voting for the bill in committee, voted against it on final passage under pressure to hold party ranks. Snowe decided not to seek another term this year, and denounced the lack of compromise between the parties. Her retirement (and the similar disappearance of various moderates) was another step on the road to gridlock.

It would be silly and ahistorical to suggest that partisan bitterness is anything new in U.S. politics. But the way it works has changed and the changes have made bipartisan compromise harder.

We are at a moment right now when the possibility of a “grand bargain” covering enormous issues of taxing and spending is in the air. We’ll soon see how it goes. Perhaps all the hyperventilation about the end of compromise has been overdone. But, although we don’t have precise ways to measure them, the norms have morphed in ways that make bipartisan coalitions much harder to form and compromise across party lines much harder to reach.

At the beginning of this series, I borrowed Ornstein and Mann’s metaphor that the source of the gridlock was a tension between a growing parliamentary quality to our party system, but a constitutional structure that requires compromise. In a parliamentary system, one party (or a coalition of parties that has agreed to a series of compromises in order to form a majority) holds almost total government power. The members of the “in” party are expected to vote the party line. By the way government is organized, the governing party or coalition has the votes to pass its bills. The members of the “out” party are expected to oppose, but they can do little to obstruct.

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But imagine how quickly the system would become gridlocked if the minority party, through something like the filibuster, had the ability to block the “ins” from passing their bills. Or perhaps you don’t have to imagine it.