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The filibuster has gone from affecting 8 percent of big bills in the 1950s to 70 percent in the 2000s

Over at U.S. News and World Report, Robert Schlesinger attaches some more numbers to the rise of the filibuster:

The fact of the matter is that the frequency of filibusters has increased by a factor of 50 since the days of (then-Democrat) Strom Thurmond jaw-jacking for 24 hours to stop a civil rights bill. So too has the general use of delaying tactics on major pieces of legislation. Consider some data points.

According to research by UCLA political scientist Barbara Sinclair, there was an average of one filibuster per Congress during the 1950s. That number has grown steadily since and spiked in 2007 and 2008 (the 110th Congress), when there were 52 filibusters. More broadly, according to Sinclair, while 8 percent of major legislation in the 1960s was subject to "extended-debate-related problems" like filibusters, 70 percent of major bills were so targeted during the 110th Congress.

Read that again: from 8 percent -- pretty infrequently -- to 70 percent, or rule of the day. (These data come from Sinclair and from her chapter in CQ Press's Congress Reconsidered.)

I can't emphasize this enough: Things are not as they have always been. The filibuster has transformed, and the Senate has followed suit, and it all happened accidentally, not with anyone debating the consequences and implications of adding a supermajority requirement to the American legislative process.

By Ezra Klein  |  November 25, 2009; 5:19 PM ET
Categories:  Senate  
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Comments

Keep getting the word out, Ezra. It's not that you're paying too much attention to this issue; it's that other people aren't paying enough.

The filibuster is a cancer on our democracy.

Posted by: SteveCA1 | November 25, 2009 8:57 PM | Report abuse

Ezra, you had a good interview a couple of weeks ago asking why the Democrats don't just allow the Republicans to filibuster (and vice versa, when the power is in Republican hands).

There were legitimate downsides, but it seemed to come down to (a) nothing would get done during the filibuster, (b) it *could* make the majority look bad, (c) it would be played out in the media rather than within the Senate.

But I think the main reason the filibuster has gained power is that today's threat of a filibuster is the equivalent of yesterday's filibuster. And threatening is easy to do without sticking your neck out.

If the party in power called the bluff of the minority, yes, it could result in a crazy mess for that one bill in the short term. But long-term, it almost certainly would make filibusterers think twice about making those kinds of threats (or at least following through on them).

If you wilt under threats, your opponent is going to use threats, and those threats themselves will be as strong as the actions they reference.

And, regarding getting nothing done during a filibuster, if we cannot pass the most important legislation in the current climate, we're not getting anything significant done as it is. It's important to compare outcomes to alternative expected outcomes, not to perfection.

I think the biggest reason the Senate avoids the filibuster is because it's an escalation with unpredictable results -- and they *all* have dirty laundry that they'd rather keep hidden within Senate chambers.

Posted by: dpurp | November 26, 2009 8:39 AM | Report abuse

You can't emphasize this enough? Here's something I can't emphasize enough: in a puff piece in the WaPo today about Dan Pfeiffer, new White House comm. director, one of his most important tasks was said to be to get the growing number of liberal bloggers to amplify the president's message. This is the first open statement I have seen that the administration is actively working on liberal bloggers to use them as an arm of the administration's communications operation. There must be a reward for those who go along and give up some of their intellectual independence. Here is the reward: access to high level officials for interviews.

Posted by: truck1 | November 26, 2009 11:36 AM | Report abuse

You know what? At the end of the day, if 51 members want to change the rules, there isn't a whole lot the other 49 can do about it. The filibuster requires the acquiescence of the majority.

In 1892, the U.S. Supreme Court ruled in United States v. Ballin that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by majority vote. In 1917, Senator John J. Walsh contended the majority of the Senate could revise a procedural rule at any time, despite the requirement of the Senate rules that a two-thirds majority is necessary to approve a rule change. "When the Constitution says, 'Each House may determine its rules of proceedings,' it means that each House may, by a majority vote, a quorum present, determine its rules," Walsh told the Senate. Opponents countered that Walsh's "Constitutional option" would lead to procedural chaos, but his argument was a key factor in the adoption of the first cloture rule later that year. In 1957, Vice President Richard Nixon issued an advisory opinion stating that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority[citation needed]. Although legally nonbinding, this opinion has been treated as definitive.

This argument has been taken to a vote 3 times during the history of the Senate (during the 60's and four times in the 70's.

All of those votes in the 1970's were during the debate to reduce cloture to 60 votes from 67 in 1975. Cloture by simple majority was invoked three times during the debate to reduce the number of votes to 60, and then a fourth time to reverse the previous three votes so that a precedent would not be established.

The Senate only requires 60 votes because Harry Reid and the Democratic caucus are willing to say that it does. The moment they are no longer willing to tie their own hands, the rule will no longer apply.

Posted by: pj_camp | November 26, 2009 12:07 PM | Report abuse

Filibusters were not necessary in the 1950s because the member of the Southern Caucus so dominated the Senate that bills couldn't get out of committee without their approval. Strom Thormund's filibuster is so memorable because for the first time the members of the Southern Caucus were helpless to prevent legislation they opposed.

Posted by: tim37 | November 27, 2009 10:07 AM | Report abuse

Doesn't a Senator have to register to filibuster, according to the rules established in 1975 to eliminate the need to carry on an endless speech on the floor? If so, who filibustered the Health Care Reform bill on 11/21/09 to require 60 votes for cloture? It seems that filibuster has becoma a default for any action (cloture, amendments, final bill approval) except reconciliation.

Posted by: CharlesJames | November 27, 2009 7:00 PM | Report abuse

while observers are outraged at the filibuster procedure in the senate, the senators themselves are strangely quiet

i don't hear a chorus of complaints from the senators

they seem to think it is a proper way to do business

Posted by: jamesoneill | November 27, 2009 7:21 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 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 12:19 PM | Report abuse

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