Well, How Did We Get Here? The Rise of the 60-Vote Senate

by Gregory Koger on August 25, 2009 · 10 comments

in Legislative Politics,Senate procedure

Last Thursday, I made the case for the constitutionality of the filibuster. Critics of the filibuster are right about one thing, however: in its current form, the Senate filibuster represents a major innovation on the legislative process laid out in the U.S. Constitution. This point is made elegantly in Keith Krehbiel’s 1998 book Pivotal Politics. Krehbiel puts the filibuster on par with the Presidential veto as the major brake points in the legislative process. The odd thing about this setup is that one veto power is explicitly provided in the U.S. Constitution, while the other is not even explicitly granted in the rules of the Senate. One veto has been wielded (true, with some evolution) since 1789, while the other has only become institutionalized over the last 50 years. This is the puzzle of today’s post: why has the Senate filibuster become a central feature of U.S. lawmaking?

It is clear that there has been a transformation of the Senate. Filibustering has skyrocketed from an annual average of 3.2 filibusters during 1951–1960 to 16.5 between 1981 and 2004 (based on a scan of news stories using the term “filibuster”). But this statistic only tells half the story: identifying a “filibuster” in the modern Senate is like handing out speeding tickets at the Indy 500. As a Senate leadership aide explained: “Obstructionism is woven into the fabric of things. The [party] leadership deals with it on a day-to-day, even a minute-to-minute basis. … You can’t underestimate the importance of it. There are offshoots of obstructionism every day.” (quoted in Larry Evans and Daniel Lapinski, “Leadership and Obstructionism in the U.S. Senate,” Congress Reconsidered vol. 8, 2005). Filibustering has been institutionalized into the way the Senate sets the agenda, writes legislation, and considers nominations.

The gist of my explanation is that filibustering became an everyday event because senators began responding to obstruction by attempting cloture rather than attrition, i.e. waiting for filibustering senators to become exhausted. This change in tactics decreased the costs for obstruction, and once it was easy, then more senators were willing to filibuster against a broader range of proposals. This general argument has been made by reporters and Congressional observers over the years (e.g. this column by Norman Orstein and a 2004 NYT article) and in a 1985 “Congress Reconsidered” chapter by Bruce Oppenheimer. However, this thesis has a short half-life, so reporters are constantly re-discovering and re-answering the question; while academics do better, the underlying story is often omitted from our studies, and there is a great deal we do not know about how and why Senate tactics changed.

Understanding Old School Attrition

Just as there is more than one way to filibuster, there is more than one way to defeat a filibuster. I classify them as “closure” (a classic term meaning any rule for bringing about a decisive vote), “reform” (changing the rules, or making an unorthodox use of existing rules), and “attrition.” Attrition means that the coalition seeking to pass a bill remains in the chamber, dragging out the debate until the obstructionists are tired, have run out of opportunities to speak (there’s a limit of two speeches per topic), or leave an opening to start a vote—once a vote starts, it cannot be stopped. Attrition was the typical response to a filibuster before the Senate had a cloture rule and, as Gregory Wawro and Eric Schickler demonstrate, majorities did not NEED a closure process to win before 1917 (although Wawro and Schickler emphasize the role of informal norms as a restraint on pre-1917 obstruction).

The 1939 movie “Mr. Smith Goes to Washington” concludes with a very realistic depiction of 1930s style attrition. Smith gains the recognition of the chair and begins speaking from his desk.

Mr. Smith in Senate 3.jpg

And Smith speaks through the night. His speech doesn’t have to be about the appropriations bill on the floor, so he can read from books, talk about the Constitution, etc. And, periodically, he can note the absence of a quorum and compel the other senators to show up in the Senate and prove there are enough senators around to conduct business.

Mr. Smith in Senate 6.jpg

But after a few hours, Smith is exhausted. And public opinion (“astroturfed” in the movie) has arrived in the form of telegrams, telling Smith to quit.

Mr. Smith in Senate 9.jpg

I’ll let you watch to see how it ends (see also the Mel Gibson version). Note, though, that the senators do NOT file a cloture petition, wait two days, and then vote. That would take too long, and would force them to vote to stop a filibuster. Attrition, even if it means lost sleep or a nap on an army cot, is preferable. Second, a filibuster is a public event: the media perks up at the outbreak of a filibuster (as they had when Huey Long was entertaining them from 1933 to 1935), and the filibuster is Smith’s means of “expanding the game” to allow the public to weigh in on the Senate’s proceedings with editorials and telegrams.

When did the Senate stop fighting words with patience? Obviously, this is a gradual process (and we still witness an occasional exhibition of attrition in the 21st century), but there are a few key dates in the transition.
February-March 1960: Senate debates 1960 Civil Rights bill. Lyndon Johnson attempts a strategy of attrition, complete with cots in the Old Senate Chamber (below). The effort fails, as does a cloture vote.
1960 senators on cots.jpg

December 1960: Mike Mansfield is elected as Senate majority leader. Mansfield was convinced by the debacle over the 1960 Civil Rights bill that attrition is a waste of time and harmful to the Senate’s image. Mansfield advocates for using the Senate’s Rule 22 cloture instead.

August 1962: a moderate-conservative coalition of Republicans and Democrats votes for cloture on a communications satellite bill. This is the first time cloture has been invoked in 30+ years, and it obliterated conservatives’ claim that they were opposed to obstruction “in principle.”

June 1964: Senate invokes cloture on 1964 Civil Rights Act. Obviously, a huge moment for civil rights, but also a milestone for the Senate as an institution. Strategizing over civil rights had dominated senators’ thinking about cloture; after the passage of the 1964 CRA and 1965 Voting Rights Act, it was easier to take a broader view of voting on cloture and revising Rule 22.

March 1975: Senate revises cloture threshold from 2/3 of those senators who cast a vote to 3/5 of ALL senators (basically, 60). This is a slight decrease, but it also ends a 26-year campaign for simple majority cloture. The Senate has continued to refine the rule but not change the threshold.

So why did the Senate change? The stock answer is that the chamber’s responsibilities grew with the size and scope of the federal government, so it became more costly to sit around watching obstructionists kill time. There is some truth in that explanation. Also, however, senators’ work habits changed. The introduction of railroads, cars, and (especially) air travel made sitting around in the Senate chamber so…boring. Tedious. Totally lame. During the mid-20th century, the Senate increasingly became a Tuesday-Thursday club, and individual senators began insisting that major legislation be kept from the floor to accomodate their travel schedules. A serious attrition effort would mean cancelled speeches in Manhattan and Chicago, no trips to the Delaware coast, and waiting longer to return to the ranch back in Texas.

Several stock explanations do NOT have a significant effect in my analysis: Senate turnover, partisanship, and the threat of reform are not strongly correlated with Senate filibustering (1901-2004). Most cloture rule changes (1917, 1949, 1959) have no clear effect, while the 1975 change is correlated with an INCREASE in filibustering. One reform that did matter was the 20th amendment, which cut down on filibustering during the final months of each Congress by changing the Congressional schedule.

Last week, Seth Masket asked if the recent increase in filibustering is attributable to the polarization of Senate parties. No. It is true that if you chart any measure of Congressional partisanship and the number of filibusters (or cloture votes) since 1970, they will both show the same trend. If we take the long view of American history, however, partisanship is a cycle with a low point in the 91st Congress, while Senate filibustering is a trend. So, when I include the early decades of the 20th century (high partisanship, low filibustering) the mid-20th century (medium partisanship, low filibustering) in my analysis, party polarization (measured as the distance between party medians) is associated with LESS filibustering. Personally, I take this result with a grain of salt, but it does drive home the notion that you can’t explain a trend with a cycle.

Still, it FEELS like there’s a relationship between partisanship and filibustering. When the media reports that there is a filibuster in the Senate, it is almost always framed as minority party obstruction. And, Sarah Binder and Steven Smith (1997) demonstrated that voting on cloture has become more partisan since the 1950s. Part of this perception is due to a selection process: majority party members do “filibuster” in the form of placing holds on bills and nominations, but these tend to lead to backroom negotiations, or they are low-level conflicts that aren’t newsworthy enough to make the lead.

The perceived relationship may also stem from the adoption of cloture as the dominant response to a filibuster. The necessary condition for an old-school attrition filibuster was a team of intense warriors ready to defy the rest of the chamber—“a little group of willful men” as Woodrow Wilson put it. These groups were typically identified in press reports by ideology (liberals, conservatives, progressives), region (Southerners, Westerners, etc.), or policy preference (isolationists). Even filibusters conducted on behalf of a party (say, to forestall an investigation into a questionable election) were carried out by a few senators identified by name.

Once cloture became the test of a filibuster, however, the necessary condition for a successful floor filibuster was a coalition big enough to prevent cloture. In the context of a Senate that is polarizing for other reasons (hint: not because of redistricting), this increasingly means uniting one party or the other behind a filibuster. And often the most newsworthy filibusters are those when the minority party met behind closed doors and agreed to filibuster so reporters can use words like “stalemate” and “showdown.” So these are the stories we read.

Next: The Case for Filibustering; or, How I Learned to Stop Worrying and Love Mitch McConnell

{ 10 comments }

Matt Jarvis August 25, 2009 at 2:36 pm

Nice subtitle

Jonathan Bernstein August 25, 2009 at 2:57 pm

Greg,

I’m surprised you didn’t talk about the tracking system (introduced by Mansfield, IIRC) that allows the Senators to move between multiple bills on the floor; I’ve always understood that tracking was pretty important to this story. No?

Second, but related…do we have any sense of how many bills never reached the floor pre-tracking because the majority knew that they didn’t have the votes to overcome a filibuster? Nowadays, there’s no real reason not to move a bill to the floor and push it as far as it can go, but pre-tracking that could shut down the Senate, so presumably the decision process by the majority of what to proceed to must be very different.

Seth August 25, 2009 at 3:46 pm

Nice post, Greg, and thanks for addressing the partisanship issue. I may use this post when I teach “Mr. Smith Goes to Washington.”

Greg Robinson August 25, 2009 at 6:05 pm

To piggyback on Jonathan’s point–the two-track system in the Senate created an unintended (was it unintended…?) problem for the positive agenda actor, who can no longer make a credible commitment to brinkmanship a la Schelling.

Greg Koger August 26, 2009 at 10:53 am

Jonathan, Greg, I don’t consider double-tracking per se to be a significant innovation. Frequently in the past (1911, 1917, e.g.) a senator who was blocking one bill would cheerfully let anything else pass–if this is what we mean by double-tracking, then it has been with us for a long time. Also, the daily schedule of the House & Senate (back when such schedules mattered) typically set aside alloted time for different kinds of bills–a quick run through the calendar to pass bills that no one hates, a chance for committees to report bills and try to get them passed quickly, etc.–before turning to the “main topic” of continuing business at 1 p.m. or 2 p.m. Informally, the House and Senate would arrange its schedule using “special orders” or unanimous consent agreements to allot time to bills that CAN pass without giving up on a bill that was filibustered.

My post claims that filibustering was “institutionalized” during the 1960s. This means a series of adjustments, great and small, to accommodate a new regime in which filibustering was accepted as legitimate, and cloture was the legitimate & best response to it. My book traces the origin of the hold system (as best I could) using archival sources, and discusses the evolution of agenda-setting in the Senate.

When previous authors highlight the importance of double-tracking, I think what they really have in mind is the abandonment of attrition as a strategy. Double-tracking, as used in 1970, was a symptom of this strategic switch, but not a significant event in itself. Mansfield’s memos do suggest that it was an innovation of sorts, but it is premised on acceptance of cloture as a strategy. Soon, the notion of actually debating a bill that is in filibuster purgatory would seem quaint…it makes more sense to bring up a bill, file a cloture petition immediately, and then shelve it for two days while the petition “ripens.” Or, keep the blocked bill on the floor while senators come to the floor and talk about whatever they want, while occasionally passing some bills by unanimous consent.

So, in my view, double-tracking per se is a molehill, and significant primarily as one of many signs that filibustering has been institutionalized.

ZC August 26, 2009 at 6:08 pm

Two questions:

One, I’ve always wondered about the bit in _Mr Smith_ where he gets warned not to allow for the Senate to recess for the day. Even if he didn’t have the floor when the Senate reconvened, doesn’t he have the right to start talking again, if he so wishes? Also, it was my understanding that a Senator has the right to two speeches, on any legislative day, so even if he lost the floor once, yielding to another Senator, he’d have the right to be called upon one more time, before any vote could be taken that legislative day.

Second and unrelated: do you know when and why the Senate decided to round all fractions up, when determining the 3/5 rule? I am thinking of this of course in regards to the late Senator Edward Kennedy. There are now 99 Senators duly sworn and one vacancy. 3/5 * 99 = 59.4. That is closer to needing 59 votes to invoke cloture, than still needing 60 (though I know the Senate rule is, 60 is still required). Enjoying the posts!

Joel August 27, 2009 at 2:42 pm

Professor Koger,

Thanks for this. But I’m not sure this gets as my uncertainty regarding the current state of the filibuster.

I understand your argument as to why cloture might be preferred by the majority over attrition as a strategy for overcoming the filibuster. But where the numbers are not there for cloture, it seems that the mere threat of a filibuster has been allowed to have the same impact as an actual filibuster.

It is very possible I am confused, but aren’t there numerous recent examples where the minority threatened to filibuster, the majority didn’t have the votes for cloture, and so the bill was simply allowed to languish, without the minority ever having to mount the actual filibuster? Though cloture may be preferable to attrition, wouldn’t attrition still be preferable to letting the minority dictate the course of the legislative process?

Jonathan Bernstein August 27, 2009 at 11:01 pm

Joel,

The problem is that attrition, defined as defeating a filibuster by waiting it out, just doesn’t work. A filibuster can be sustained more or less forever. There’s no real advantage to the majority party in forcing the minority party to conduct a “real” filibuster.

Joel August 28, 2009 at 3:52 pm

Thanks, Professor Bernstein, I’m sure you’re right about that.

I guess I’m just more stubborn. I’d make them pay for it.

And I am also wondering if the increased frequency of filibustering may well be connected to the fact that its costs have been reduced (eliminated?).

Maybe attrition can’t stop a particular filibuster, but it might make the minority think twice before resorting to the tactic again the next week.

Jonathan Bernstein August 28, 2009 at 11:51 pm

It’s not a question of stubborn. Think about it…if you can’t beat the filibuster by attrition, that means either you’ve given up and pulled the bill (at which point the opposition would hardly think twice before trying again). Or, if you are stubbornly keeping the (first) bill on the floor, then there’s no “think twice” situation.

Only if the bill is very popular (in the states with the filibustering Senators) is there any potential price to be paid. And even then, the bill may not be popular among primary election voters, and Senators may be at least as responsive to them.

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