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'Even LBJ would be stuck if he drew this hand'

Mark Schmitt adds another perspective on the rise of the filibuster:

In terms of culture and custom, the turning point was almost certainly the previous health-reform debate, in 1993 and 1994. That's when Bob Dole, then the majority leader, made the phrase "You need 60 votes to do anything around here" his mantra, and when -- thanks to Bill Kristol's famous memo -- the idea of blocking major legislation for political reasons, rather than trying to get it revised to reflect your own policy preferences, took hold. Maybe I put too much weight on that period because that happens to be when I worked in the Senate, but there's no doubt that at that time, a whole bunch of obstructionist techniques came out of the dusty toolbox, such as "filling the amendment tree" and, in the House, the motion to recommit a bill to conference. (I once witnessed Ted Kennedy asking staffers for advice about how to break one of these tactics, which he had never seen in 34 years in the Senate.)

Underlying that, of course, was the structural change that came with the realignment from a four-party system, in which each party had a liberal and conservative wing, to two ideological parties. (A center-left party and a far right party.) As frustrating as today's conservative Democrats like Mary Landrieu are, none of them are more conservative than any Republican, and no Republican is more liberal than even the most conservative Democrat. As a result, a filibuster can be organized and enforced by a party leader, whereas in the past, there was considerable ideological overlap, so both sides of a fight would be cross-partisan, and thus loose and shifting.

In the old Senate (up to the early 1990s), there were dozens of possible configurations that could produce legislation that won broad majority support. You could see it quite visibly in the Senate Finance Committee when Lloyd Bentsen of Texas was the chair -- from the center of that horseshoe dais, he might put together a coalition on the center-left one day, and one on the center-right the next, and if he played the politics right, the vote in committee would typically be something like 17-4, with a similar majority on the floor. My boss, as one of the more liberal members, was sometimes in the majority coalition and sometimes a dissenter -- it changed all the time. As debate began, it was hard to predict the final vote.

But to watch Max Baucus maneuver in the same committee last month, you had to sympathize with how little he had to work with: Forty percent of his members were completely opting out -- any amendments they offered were purely symbolic or intended to support a talking point in opposition. The only coalitions available were a totally Democratic one and one that included Olympia Snowe. On the Senate floor, it's the same thing -- with a hundred senators, there are in theory, some mathematically unimaginable number of coalitions. But in reality, there are only two: Keep every single Democrat, including red-staters up for re-election and the now unabashedly malevolent Joe Lieberman, or lose one and get Olympia Snowe.

This is one of the explanations I favor for the rise of the filibuster: The Republican minority of the mid-'90s proved that a filibuster strategy was good politics. Kill the majority party's legislative agenda and you kill their standing in the eyes of the public, as well. America doesn't like losers, and the press has a useful tendency to blame legislative failure on the party that failed to pass the bill rather than the party that actually killed it.

By Ezra Klein  |  November 25, 2009; 10:21 AM ET
Categories:  Senate  
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"America doesn't like losers, and the press has a useful tendency to blame legislative failure on the party that failed to pass the bill rather than the party that actually killed it."

As well they should. The Democrats could always play hardball to prevent this sort of thing. For example: if you filibuster this bill, you get no earmarks, period - problem solved. But they don't, they're in charge, and therefore it's their fault.

Posted by: ostap666 | November 25, 2009 11:06 AM | Report abuse

You can't blame the Republicans for the impending failure of the so called health care "reform." Democrats have a commanding majority in the House and 60 votes at their disposal in the Senate. They can do anything that their members agree to do. The problem, of course, is that the American people aren't buying the snake oil. And if there is anything politicians want, it's to be re-elected. It's a lack of intestinal fortitude on the part of the Democrats that's to blame for the health care debacle. I do hope they pass something - it will make for a bigger party for our side next November.

Posted by: Curtis1967 | November 25, 2009 11:13 AM | Report abuse

So Ezra are you going to write a similar article about the minority Democratic tactics of using filibusters against the Republican majority's priorities and judical nominations during the Bush administration? I suspect you were cheering that on at the time because you wanted to see the Republican's fail in everthing they did so your preferred party could eventually take over. I also disagree with your characterization of the two parties: I believe the Democrats are far left wing and the Republicans are right of center. I guess it's all your ownn perspective. Have you ever thought that maybe the Democrats plan for a massive federal government involvement in 16% of the U.S. econonmy is so beyond what the Republican party stands for that they can't help but oppose it or they couldn't call themselves Republicans. I mean you know it's out there in lefty land when you can't even get the two senators from Main to support it. Would you expect the Democrats to support privatizaton of Social Security? I suspect that the Democrats would fight it to their dying breath, just like the Republicans are with the government take over of healthcare.

Posted by: RobT1 | November 25, 2009 11:17 AM | Report abuse

It is really dispiriting to read this post and the couple before it on the filibuster and how it has evolved to stymie our system's ability to solve problems (and the comments thereto). People younger than, say, their mid to late 40s have never experienced as an adult a time when Congress made a serious attempt to deal with big problems, such as the growing pollution in the 1970s that gave rise to the slew of environmental legislation enacted by bipartisan majorities during Nixon's presidency or even the Social Security reform of 1983 and the tax reform of 1986.

Beginning especially with the rather poisonous election of 1988 and continuing right up to today's mass irrationality (overwhelmingly but not exclusively on the right), we have lost the ability to consider the needs of the whole society and solve problems through mutual sacrifice. It has now reached the point where many of today's commenters (and even pundits) can't really imagine such a society or polity. Unfortunately, the problems aren't going to get better with inaction and increased vitriol, they are only going to get worse. Global warming, financial system rot and severe inequality won't end by pretending they don't exist, and the society that we (you) live in by the 2030s will be something I will be happy to miss.

Posted by: Mimikatz | November 25, 2009 11:39 AM | Report abuse

I thought Ezra's purpose was doing Economic Policy analysis, not analysis of the traditions of the United States Congress.

That being said, good policy will have the votes to pass a 60 vote threshold.

Posted by: lancediverson | November 25, 2009 11:51 AM | Report abuse

*good policy will have the votes to pass a 60 vote threshold.*

That assumes 40 people capable of understanding what "good policy" is.

Posted by: constans | November 25, 2009 12:10 PM | Report abuse

I meant 60 Senators. Blast.

It is entirely possible to have a determined minority against any policy. If they are crazy, then it stands to reason that they would not know what "good policy" was if it hit them in the head.

What we need to do is stop inventing calvinball rules. Plenty of laws were perfectly capable of passing with a majority vote. The senate is designed to stymie bare majorities through use of its equal-representation-for-states design.

Posted by: constans | November 25, 2009 12:13 PM | Report abuse

The break-up of the Filibuster Four was presaged in the classic "Let It Pass" album:


Posted by: simonpaul2000 | November 25, 2009 1:03 PM | Report abuse

I'm just disappointed that Obama didn't even try.

Posted by: bmull | November 25, 2009 8:02 PM | Report abuse

In the UK, the convention was established in the 1920s that the House of Lords would not use its power to prevent legislation that the governing party had promised in its election manifesto. The thinking was that the unelected Upper House had a legitimate role to prevent a governing majority from abusing its power (since there were no other checks and balances) but it shouldn't prevent the majority from doing what it was specifically elected to do. That's how very progressive policies could be enacted despite a very conservative Upper House.

The US is now in exactly that situation (the Senate is not technically unelected but it is unrepresentative). Health care reform is what Obama and the Democrats were specifically elected to get done. A vast majority of Americans want heath care reform. Obstructionists are perverting the democratic process. The problems with Republicans is that they do not believe in democracy - even less so than British aristocrats did in the 1920s. If they supported democracy, they would accept majority legislation as legitimate even if they disagreed with it. This is the point that Democrats should stress: elections matter.

Posted by: carbonneutral | November 30, 2009 12:17 PM | Report abuse

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