'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.
November 25, 2009; 10:21 AM ET
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