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How a letter from 1964 shows what's wrong with the Senate today

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One of the challenges in arguing about the use of the filibuster is that the filibuster has changed drastically in recent decades, but it's done so quietly. Quietly enough that people don't really understand that it's changed at all. That leads to an understandable complacency: If we've always had the filibuster, and we've done pretty well thus far, then maybe the filibuster isn't worth mucking with.

But though we've long had the filibuster, we have not long had a Senate that used it to impose a 60-vote requirement on all controversial legislation. Dramatizing the difference between the filibuster that was used to express opposition and filibuster that is used to impose a supermajority voting requirement is a bit difficult. But David Broockman, a senior at Yale, sent along a letter he came across in the LBJ presidential library that does it better than any document I've seen.

The letter was written by Mike Manatos, who served as Senate liaison for Johnson, and addressed to Larry O'Brien, who directed Johnson's campaign. It was written Dec. 8, 1964, just days after the election. Manatos is giving O'Brian an overview of how the Senate elections improved the chances of passing Medicare. He writes:

Of the 49 votes cast on behalf of Medicare (Gore amendment) on September 2, 1964, we lost two supporters in the last election -- Senators Keating and Salinger.

However, we picked up five new supporters -- Senators Bass, Harris, Kennedy (Robt.), Montoya, and Tydings.

We also had three supporters who missed the vote this year -- Senators Bayh, Hartke, and Kennedy (Ted).

Thus if all our supporters are present and voting we would win by a vote of 55 to 45.

Of course, if we could persuade Senator Russell (who is on the brink) to support Medicare this year our margin should be even greater.

"We would win by a vote of 55 to 45." Phil Schiliro would not write that letter to David Plouffe today. There would be no vote of 55 to 45, because the filibuster would forestall the vote. The fact that 55 Democrats support a controversial bill would be immaterial unless there was some strategy for attracting five more senators to the side of the administration.

But in Johnson's time, it wasn't that way. And good thing, too. Until 1975, it took 67 votes, not 60, to break a filibuster. If the Senate had operated under a de facto 67 votes rule, little would have been done, because so much could have been stopped. Medicare eventually passed with 68 votes, but that was in part because it was going to pass, and bills that pass attract more votes than they would otherwise get. (It's also, as political scientists argue, because the country was less polarized, and the minority did not see blocking legislation as its primary path to power, or as the primary demand of its base.)

There are many examples along the lines of Medicare. The political scientist David Mayhew points to FDR's court-packing scheme as another instance in which a filibuster would have been assured today, but played no role at the time. “General opinion is that the [bill] will pass,” wrote the conservative Portland Herald Press, “and sooner than expected, since votes to pass it seem apparent, and the opposition cannot filibuster forever.”

The filibuster of yesteryear, in other words, was not a supermajority requirement. It was closer to a tantrum. That's not to say it was never used to prevent a vote: Southerners did exactly that to block the Civil Rights Act, and Johnson was forced to find 67 votes to break their effort. But such measures were left for extraordinary moments, not built into the everyday workings of the body. The use of the filibuster has changed, and with it, so too has the Senate. If that transformation is a good thing, then the practice's supporters can make their argument. But the radicals aren't the ones who want to undo stealth rewriting of the legislative process. It's those who want to ignore it.

By Ezra Klein  |  November 25, 2009; 8:18 AM ET
Categories:  Senate  
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Comments

Amen. But what are the chances of Harry Reid or his successor actually doing anything about it?

Posted by: redwards95 | November 25, 2009 8:45 AM | Report abuse

I'm unclear on one point. Instead of abolishing the filibuster, why not change it back to how it was before it "changed"?

Posted by: Bertilak | November 25, 2009 8:47 AM | Report abuse

You've been on a bit of a jihad against the Senate filibuster this week, which is awesome. I think we're going to need more of an organizing effort to beat back the Senate's archaic rules, much along the same lines as Grover Norquist's anti-tax and the NRA rating, both of which a candidate needs in order to be taken seriously in the GOP.

As I envision it, it would have potential Senate candidates in the future pledge to support reform of the Senate filibuster to allow the will of the majority to not be stifled, maybe something along the lines of Zell Miller's proposal to reduce the number of votes needed for cloture through subsequent rounds of voting until you get to 51.

Posted by: zeppelin003 | November 25, 2009 8:47 AM | Report abuse

The major change in Senate rules that made possible the modern filibuster occured under the leadership of Robert Byrd during his first stint as Majority Leader. Byrd introduced the concept of "dual tracking" under which the Senate could have two or more bills under floor consideration at any one time. Prior to this change, a filibuster ended floor consideration of all other bills until the one being filibustered had been disposed of. No appropriations, no nominations, no unanimous consent agreements, no nothing. All Senate business came to a dead halt during a filibuster, which raised the stakes on the members conducting the filibuster exponentially. The pressure that would be brought to bear if the entire Senate ground to a halt was one of the reasons filibusters were so rare. Once Byrd changed the rules to allow dual tracking, filibusters became almost pain free. A Senator simply had to announce they intended to filibuster and the Majority Leader would use his dual track authority to move to other business and get around the road block. Over time, most leaders simply did a whip check and declined to schedule a bill if a filibuster was possible.

Majority Leader Frist almost never scheduled a bill for floor consideration if there was a "hold" (threatened filibuster) on it, although he did schedule nominations if they were high profile. Harry Reid has moved in a slightly different direction by scheduling bills, immediatly filling the amendment tree and immediately filing for cloture. He often does this on uncontroversial bills in order to run up the cloture vote count and make it appear the number of filibusters has increased dramatically.

In actuality the number of holds, threatened filibusters etc. has been fairly high and about the same under both parties since the mid 80s. The leader who handeled them the best was probably Trent Lott who would simply go ahead and schedule the bill, notify Senators who had placed holds of the timing and ask if they wanted to go ahead with their filibuster. Most of the time they caved, but occaisionally he let them talk for 1/2 a day and thhen used his dual track authority to move on to other Senate business.

Posted by: WoodbridgeVa1 | November 25, 2009 9:06 AM | Report abuse

It has changed because politicians think they have little backlash from voters from utilizing it. If senators feared getting voted out of office for supporting a filibuster of healthcare reform then there wouldn't be a filibuster. I think this is a symptom of the fact that the only people really paying much attention are the partisans and so a filibuster doesn't change the mind of anyone who is paying attention. A filibuster panders to your base.

The problem for Democrats is that they are trying to make a big change to healthcare reform while also assuring everyone that they will not be affected. Thats really tough to get people fired up over.

Posted by: spotatl | November 25, 2009 9:07 AM | Report abuse

If the problem is filibuster frequency, should a rule change focus on that aspect? For example, rather than change the number of votes needed, or eliminate it altogether, why not change the rule to limit both the majority and the minority to filibuster per calendar month. This allows 12 per year per side, which should be more than enough for senators to ensure adequate debate on controversial measures.

Posted by: JoeMiller2 | November 25, 2009 9:17 AM | Report abuse

Seems what you are lacking here is a discussion of WHY the current rules are being left in place, i.e., how it serves the interest of both parties, or why the Dems are afraid to make a change. It's not like these rules are written in stone, as you said, the problem is that they have already been changed from the traditional concept of a filibuster.

I've been musing that Dems would probably have been better off with 57-58 votes rather than 60 in their caucus, because then it would have been possible to highlight the Republican obstructionism. At this point, Republicans can just point to the fact that the Dems could do what they want if they hold their own votes together, and therefore effectively wash their hands of any responsibility if HCR fails.

Posted by: exgovgirl | November 25, 2009 9:18 AM | Report abuse

Bertilak: The biggest change isn't procedural, (the fact that people don't have to literally filibuster is a factor, but not the biggest one, since has been pointed out many times, literally filibustering wouldn't really inconvenience Republicans all that much; what do they have to lose? They WANT to bring the Senate to a grinding halt.) but cultural: at the time such an extreme policy towards filibusters would have been considered ridiculous, but now it isn't.

Posted by: usergoogol | November 25, 2009 9:33 AM | Report abuse

I have never seen politics as they are today, or politicians who appear to have lost all sight of what they were elected to do.
The division between the two parties is about as unAmerian as you can get. The tactics, actions of many, total disregard to what benefits and what does not, lack of any respect or consideration for one another and their ideas, outlandish statements and behavior for the sake of grabbing headlines and the camera have taken priority over representing us and our country.
What an example it is for the future of our country when you witness those who are supposed to represent us lie, distort, fear monger, totally sacrifice the American people for sake of party, trying to win at any cost and hypocrasy.

Posted by: kathlenec | November 25, 2009 9:34 AM | Report abuse

Right on, but David is a junior.

Posted by: sy12 | November 25, 2009 10:21 AM | Report abuse

Yawn....everytime somebody isn't getting what the want in the Senate, they start threating change the Senate rules...don't we all recall the nuclear option just a few years ago? Dems have 60 votes, so all this talk about ideological divide shouldn't be a problem.

Posted by: truth5 | November 25, 2009 12:13 PM | Report abuse

Perhaps the real cause of this fillibuster intractability is actually the decrease in the vote threshold for fillibuster.

It seems more reasonable to use the fillibuster to block legislation when the requirement is 60 rather than 67.....Although contrary to the statement I just made, California would shows that Republicans won't blink at blocking legislation when the requirement is 67....

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

The problem is that any polarization in the country was diluted by the party coalitions. There were liberal and conservative wings of both parties. The Southerners who filibustered the Civil Rights Act were Democrats, and one of the final votes to break the filibuster was Republican Everett Dirksen. I cannot imagine that happening today.

The other problem is that those who would filibuster a bill have been let of the hook of actually having to do it. Procedural votes, where bills can be defeated without any public statement as to why, has taken the place of actually holding the Senate floor and stating for the record why they are blocking the bill.

Posted by: risejugger | November 25, 2009 1:12 PM | Report abuse

as you point out, the Senate makes the rules and can change them (as when it lowered the threshold from 67 to 60 to break a filibuster). don't see anyone on either side agitating for that.

also, the nature of the filibuster has changed. during LBJ's time, the minority was required to stay on the floor and keep talking until they literally ran out of words and/or energy. now merely invoking the magic word is adequate, then debate stops and all go to dinner. where are the real filibusters of yesteryear?

Posted by: jimjaf | November 25, 2009 1:42 PM | Report abuse

This nails it. Why does it take 60? A majority of Senators favor strong health care reform. That it takes sixty percent thwarts the will of the people as it was expressed in the election.

Posted by: tinyjab40 | November 25, 2009 1:46 PM | Report abuse

Despite the fact that 67 votes were required historically to break a filibuster, there was also the onus of the need to hold the floor to maintain one. That meant that nothing got done while Senator Blowhard was reading Moby Dick--which meant his ardent supporter, Senator Claghorn couldn't get My Pork Bill passed while Senator Blowhard was cruising through the chapters about the types of whale. This made Senator Claghorn open to a deal--vote to break the filibuster and you'll get support for My Pork Bill. Claghorn had to deliver on the vote for cloture before he could get to a vote on My Pork Bill. Not only were filibusters busted but bills important to single states were passed as well. Everyone went home happy except for Senator Blowhard and Herman Melville.

Today, without the need to hold the floor, we have "virtual" filibusters instead of "actual" ones. Business gets done AROUND the filibuster--consequently there's no impetus to make deals because business goes on as usual. Even if a deal is struck, should My Pork Bill get passed while the "filibuster" is in place, Senator Claghorn has nothing held over his head to deliver his vote on cloture. So if Claghorn is a real sleeze, guess what...

While the filibuster can be a great leveler to keep minority interests from being overrun by majorities, it also allows a determined minority to hold the majority to ransom--and without the need to make and deliver upon deals, the minority can act like the kidnappers who take the ransom but kill the victim anyway. There used to be a sort of honor in the Senate--you make deals, you keep them. But with the extreme polarization and ideological politicization that is seen today (chiefly on the Republican side of the aisle), that honor has disappeared.

Something has to be done about the filibuster--it is a sad relic of a better era.

Posted by: guchrin | November 25, 2009 3:40 PM | Report abuse

Also, one must keep in mind that the filibuster of old REQUIRED that the Senator (or Senators) maintain control of the floor by talking, and talking, and talking. Today the Republicans mearly have to suggest a filibuster and the bill is put into limbo.

I recognize that once a filibuster is started all other Senate business is suspended but maybe that is what should happen. Let C-SPAN cover it and show to the American people why their government gets NOTHING done.

Posted by: mehrenst1 | November 25, 2009 3:53 PM | Report abuse

Reform or abolish the filibuster in the short term. In the long term, reform or abolish the Senate itself. It gives the overwhelmming bulk of the power to a small percentage of the population, since every state has two senators, whether it be California with 37 million people or Wyoming with half a million.

Posted by: skylights | November 25, 2009 4:47 PM | Report abuse

Is there a major principle on which people wouldn't agree, or are they all just trying to score points on the opposition. And who is the "opposition"? Fellow Americans. We have much to gain if we can function in harmony and much to lose if we split apart.

I think Rodney King said it best: "Why can't we all just get along?"

Time to reprogram some minds in the Senate.

Posted by: Fred541 | November 25, 2009 5:52 PM | Report abuse

Thank you for this. Of course, I have to say I was glad about the Clinton administration's ability to block the most heinous (my view) of the GOP Congress's measures, and going to the mattresses on a particularly awful nomination. So I have some ambiguity about this, but now I can see the way out: don't deny the filibuster, but make it like the one of old. If you filibuster, no other business can go on, and you must keep a continuous presence on the floor, reading the phone book and going to the rest room in shifts. Most filibusters would be short. The only hope of victory would be a massive public shift in sentiment against cloture.

Posted by: jimhass | November 25, 2009 6:36 PM | Report abuse

Ezra makes some good points, but given the tantrum that the Dems (and moderate Reps - remember McCain and the gang of 7?) threw when the Reps threatened the "nuclear option" with Judge confirmations to overcome the Dem minority filibuster under Bush - this all seems somewhat - shall we say - disingenuous, not to mention hypocritical.

But - partisans always have short memories and even shorter perspectives when looking into the future. Given the likelihood that the Reps will pick up a couple of seats in 2010, it is very likely they will retake the majority in the Senate in 2012 when they will have a significant structural advantage (The Dems will be defending 24 seats while the Reps will be defending only 9).

I hope Ezra and Democrats will be as sanguine about loosening the filibuster rules then. What goes around, comes around. If the rules are loosened, it will certainly make it easier for a narrow Republican majority then to undo the damage of this Congress.

Posted by: DWSUWF | November 25, 2009 7:12 PM | Report abuse

I don't remember Bush and company having problems passing everything and anything for 8 years without 60 votes, so WHY CAN"T THE DEMOCRATS DO IT NOW THAT WE CONTROL THE HOUSE, SENATE AND THE WHITEHOUSE!!!!!!!!!!!!!

Posted by: McSameChalin | November 25, 2009 7:50 PM | Report abuse

The common use of the filibuster merely makes an already undemocratic house even less so, further magnifying the undue influence of depopulated, rural states. This is not a good thing.

Posted by: SeattleCharles | November 25, 2009 8:16 PM | Report abuse

I've signed a petition asking Majority Leader Reid to reconsider the filibuster rules:

http://StopSenateStalling.com

Posted by: fourseasons1 | November 25, 2009 9:52 PM | Report abuse

The present filibuster/super majority system works perfectly for bog money interests. All they have to do is buy a few Senators in a close Senate and their way will prevail. Great bang for the buck. Which is one reason they are so against the opt out method for the public insurance option. Much easier to buy a few Senators and stop public insurance in DC, than to have to go to each state and buy off enough legislators to get the state to opt out. The best government money could buy but one that assures us that the slow decline of the U.S. because of what Friedman called a steady diet of "suboptimal solutions" made to satisfy all the special interests. Get ready to wave to the Chinese as they speed by us.

Posted by: atp2007 | November 25, 2009 10:51 PM | Report abuse

So, this is Democracy. My ass.

Posted by: terris1 | November 25, 2009 11:57 PM | Report abuse

FL Congressman Alan Grayson has posted a petition asking Harry Reid to change Senate rules to reduce the number of votes needed to block a filibuster to 55.

http://www.stopsenatestalling.com/

Sign it!

Posted by: kalliek | November 26, 2009 2:01 AM | Report abuse

The members of the U.S. Senate used to take genuine pride in referring to the Senate as the world's greatest deliberative body; it was once an institution of great orators that conducted debates that could actually change minds and illuminate issues. Today, U.S. Senators all eventually become hucksters and back room dealmakers who hide behind the mere threat of a filibuster to avoid getting up and saying what they think will convince someone to agree with them. Maybe it gets the Senators back into raising campaign funds faster.

Posted by: taylorbad | November 26, 2009 2:23 AM | Report abuse

Does any one know how many nays there were issuing in the ridiculous original fillibuster?
And is there any guesstimating what the founders would do today considering the circus it has become.
Don't laugh, I think another constitutional convention should be held. (I won't hold my breath)

Posted by: pdsnc | November 26, 2009 8:46 AM | Report abuse

It is all talk anyway. It takes 60 votes for the Senate to decide to go to the bathroom.

I truly irritates me that that a large majority of the people can elect a majority of the Senate to do something like badly needed health care reform, and weasels like grandstanding Joe Liberman can hold it up because it requires more than a majority vote to pass.

I'd pass this with a public option by reconciliation and then work to reform the Senate.

We can pass GOP bills to lower taxes on the rich during two wars using reconciliation, but not health care reform which helps millions of ordinary people.

Posted by: tinyjab40 | November 26, 2009 9:13 AM | Report abuse

I agree, let's revert back to 2/3 majority to pass bills. While we're at it let's repeal the 16th admendment and abolish popular vote for US senators and allow state senates to appoint them like the constituin originally dictated. This would serve two purposes: 1 senators wouldn't be so beholden to special interests in order to woo money from them for elections. And 2 they would be directly accountable to the constituents of their states, not whatever fad DC has cooked up at the moment.

We should also only open the senate for 4 months a year just like the founding fathers. Then perhaps they won't have the time to dream of new ways to spend our taxes and put further burden on our grandchildren.

Posted by: quigbrew | November 26, 2009 10:49 PM | Report abuse

previous post should be 17th admendment not 16th. Although the income tax should be repealed to. All taxes should be transparent to the consumer in the form of a sales tax

Posted by: quigbrew | November 26, 2009 10:53 PM | Report abuse

I like zosima's point. I would guess that as the number of votes required to overcome a filibuster approaches the number required to pass legislation, most people would see voting to overcome the filibuster as support for the bill. As an example, imagine it takes 51 to overcome a filibuster and 50+tie to pass---Senator #51 will have a hard time justifying his "I was against it after I was for it" position. But with 17 other Senators in the same boat, she can point to the need for an up-or-down vote, to move on to other business, etc. as reasons for voting for cloture. A 67 vote threshold provides much better cover on tough votes (especially if your caucus has 60 members).

Posted by: jasonmtroos | November 27, 2009 9:13 AM | Report abuse

I personally feel the filibuster is one of several examples of the lack of democracy in our political system. A simple majority should be sufficient in a civilised democracy. At the risk of sounding like a wild-eyed radical I submit that the Senate itself is not a democratic institution. California or Texas are represented by the same number of senators as say, Wyoming or Alaska. In the relatively civil political environment of the past maybe that was acceptable, but in these discordant times the party of "NO" can simply block legislation in the Senate using arcane and undemocratic procedures. On top of that, the lobbyists are perfectly well aware that Senators have an influence on legislation that is disproportionate to their electoral base in many cases. Result - gridlock and influence peddling. Abolish the Senate, for the sake of democracy - or at the very least abolish the filibuster.

Posted by: pwinter2 | November 27, 2009 12:49 PM | Report abuse

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