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How Robert Byrd Jr. created the modern filibuster

Commenter WoodbridgeVA adds an important piece to the filibuster story:

The major change in Senate rules that made possible the modern filibuster occurred 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..

The dual-track authority is a fairly big piece of the puzzle. But the question, in part, is why it's been allowed to stand. Both Hill experts and political scientists argue that the reason, basically, is that the Senate has things to do. The frequency of the filibuster means that ending the dual tracking would be the same as shutting down the government. It would be a high-stakes showdown over a Senate rule change, which is not something that many in the Senate have evinced much interest in attempting.

But this is how the filibuster was normalized into a 60-vote requirement. Byrd responded to the slight uptick in filibusters by making it much easier and cheaper to filibuster, rather than leading a fight to make it much harder to filibuster. But he saw that as streamlining the process. It's not like the minority was going to filibuster everything. It just wasn't done.

But senators of both parties adapted to the new rules. This was still some years before the filibuster became constant, which allowed the Senate to ease into the new regime. But as people began to understand that threatening the filibuster was a lot easier than filibustering, they began to do it more often. The majority and the minority began to think in terms of 60, and strategize in terms of 60. And then, in the '90s and oughts, when the filibuster became the only Senate rule that mattered, it wasn't such a big leap from the period right before that, and so it didn't cause a showdown, either. The story of the filibuster is a story of small changes that everybody got used to, which allowed for more small changes that everybody got used to, and so on, until the Senate had undergone a large change indeed.

By Ezra Klein  |  November 25, 2009; 2:06 PM ET
Categories:  Senate  
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Comments

It does not make any difference who changed the rules. Democrats use it when Republicans are in the White House and Republicans use it when a Democrat is in the white house. NY Times and Washington Post like the filibuster when Democrats initiate it and complain about it when Republicans do it!

Posted by: philly3 | November 25, 2009 2:59 PM | Report abuse

Interesting. I knew about the rule but not who originated it. Though they don't have to change the rule. They just don't have to use the rule. The Majority Leader doesn't have to invoke the rule.

A particular issue might have different results, but I would expect that the party supporting the filibuster will most likely pay the price if they don't invoke the rule.

Pretend for a moment that in this last vote the 60 votes didn't exist for cloture. If I were Reid, I would have told the GOP to read the Philadelphia phone book if they were so inclined.

Posted by: James10 | November 25, 2009 3:04 PM | Report abuse

Ezra, you mentioned the other day that the filibuster wasn't needed, because un-popular policies die quickly in the Senate regardless (Bush's SS reform). Isn't there a real possibility that is happening now though with HCR? I haven't seen a poll in a while where anywhere near a majority of the country supports the current legislation. Isn't that having more of an impact on the progress than anything?

I would assume if 60%+ of the country supported the legislation, it would have been signed into law by now.

Posted by: truth5 | November 25, 2009 3:29 PM | Report abuse

Dual-track authority was clearly created to solve a perceived problem of the filibuster of that era. So just as clearly, the problem of the filibuster, in some way at least, existed before dual-track authority began.

Posted by: Lomillialor | November 25, 2009 4:37 PM | Report abuse

Obviously the consequences were not war-gamed out in advance. If you make a filibuster cost-free to the rest of the senate in terms of time and attention, then eventually it will inevitably become cost-free culturally. The "culture" of the filibuster, in which it was just "not done" except under extreme circumstances, only existed in the first place because there were real-life consequences where you made the lives of your colleagues very difficult. Once you take away the practical consequences of the filibuster, all you're left with is acting as an irritating bloc of senator who is opposing legislation. And the majority apparently doesn't care enough about legislation to take that kind of thing personally.

*Democrats use it when Republicans are in the White House and Republicans use it when a Democrat is in the white house.*

We have evidence in the form of the fact that much legislation under the Bush administration passed with less than 60 votes to show that this is not true when the Republicans are in charge. The Democrats, perhaps having had more senators who had been in office for longer were more accustomed to past traditions, while the republicans, many of whom came in with the class of 1994 and were led by the relative newcomer Bill Frist, had little attachment to the previous cultural impediments to using the filibuster as a manner of course on all legislation.

Posted by: constans | November 25, 2009 5:22 PM | Report abuse

I'm glad to see you (Ezra) acknowledging Woodbridge's comment. I just finished reading your original post, saw WB's comment and did my own search to clear the issue for myself. At the top of the results was -this- post. Good Job.

Posted by: sjeffh | November 26, 2009 7:50 AM | Report abuse

Fascinating!

I'm would be interested as well to have you tell the story of how Senator Byrd filibusted the civil rights act in the Senate.

Posted by: WrongfulDeath | November 28, 2009 9:26 AM | Report abuse

Fascinating!

I'm would be interested as well to have you tell the story of how Senator Byrd filibusted the civil rights act in the Senate.

Posted by: WrongfulDeath | November 28, 2009 9:26 AM | 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 problem 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 12:20 PM | Report abuse

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