Sometimes, constitutional change is accompanied by drama, headlines, conflict, and, eventually, a showdown with winners and losers. And sometimes constitutional change just happens, without anyone really planning on it or noticing it. As Greg Koger explains in his new definitive study, that’s exactly what’s happened in the rise of the 60 vote Senate. Anyone who wants to understand why immigration reform is unlikely, why climate legislation is barely possible, and why health care passed the way it did has to understand how Congress works. Understanding Congress includes understanding the 60 vote Senate, and if you want to understand the 60 vote Senate, you want to read Greg Koger’s excellent Filibustering: A Political History of Obstruction in the House and the Senate.
The first thing to know is that we haven’t always had a 60 vote Senate. Most political observers know that the Senate’s extended debate isn’t actually in the written Constitution, but fewer know that what Koger calls “institutionalized” filibustering is relatively new. In fact, has his subtitle points out, filibustering hasn’t even always been associated mainly with the Senate. Yup. Koger has unearthed a little-known fact from American history. In the 19th century, it was the House, not the Senate, that was known for obstruction, and he relates the history of the rise and fall of House filibusters, and the beginnings of the Senate as the main arena of obstruction.
So, how did we get to where we are now? Koger finds that the key variable is the value of time for Senators. Over the course of the 20th century, the Senate’s agenda became increasingly full. Moreover, as transportation improved, Senators were no longer stuck in Washington for the duration of a Congressional session – they could easily visit their states as often as every weekend, and they could also take fact-finding trips to any number of far-flung places, such as, er, Iowa and New Hampshire. In the first half of the century, the main weapon against filibusters was attrition – think, as everyone does, of Jimmy Stewart in Mr. Smith Goes to Washington. But attrition takes time, and Senators increasingly didn’t want to spend that time. So by the 1960s, majorities moved from attrition to cloture to fight filibusters. However, one of the effects of this shift was to lower the cost of obstructing the Senate’s business (no longer would filibustering Senators have to commit to marathon speeches). And that, in turn, meant that obstruction was no longer reserved only for the most important bills and nominations. Instead, filibusters were institutionalized:
By 1979, the main procedural features of the contemporary Senate were in place. First, the primary method for managing Senate floor debate is the unanimous consent agreement. Second, filibustering no longer requires individual effort on the Senate floor. Instead, senators signal their intent to filibuster via private letters to their party leaders or messages to party secretaries. By placing a hold on a measure or a nomination, senators can keep it off the Senate floor temporarily. Third, the primary means for heading off a filibuster are compromise and cloture…In the contemporary Senate, cloture has gone from taboo to commonplace.
Koger’s achievement here is impressive. Using a variety of quantitative and qualitative methods, he traces the history of obstruction in both chambers of Congress throughout the entire history of the republic, analyzing the causes of change, and explaining the options for future reform. While this is certainly a work in mainstream political science, it should be completely accessible to general readers (OK, except for a couple of discretely placed and necessary explanations of the quantitative methods he employs, but that doesn’t get in the way of telling a good story).
Koger ends by pointing out the ubiquity of obstruction: “Filibustering is endemic to the legislative process. As long as individuals and minority factions have a right to participate, some legislators will be tempted to use those rights to delay and defeat proposals the oppose and promote bills they support.” If that’s the case, then the choices for reform seem stark; the Senate can either put up with filibustering in some form, or it can transform itself into a second House of Representatives in which the minority party is largely irrelevant. So in some ways, the question of filibuster gets to the large questions of political theory, and whether the United States should remain a Madisonian democracy or transform into a majoritarian democracy. At the same time, the question of filibusters and the operation of the Senate is of immediate practical importance, as Barack Obama’s judicial and executive branch nominees linger in limbo, and a fair part of the Democratic legislative agenda has passed the House only to die, apparently, in the Senate. For anyone wanting to understand the question, Greg Koger’s book is essential.