Yesterday, for the second time in as many days, Senate Republicans—and one Democrat—voted, 41-57, against invoking cloture on financial reform legislation, thereby blocking efforts to bring the bill to the floor for an up-or-down vote. In other words, they filibustered. Again.
While the latest Senate filibuster is unlikely to last, in recent years the world's greatest deliberative body has done a lot more deliberating than usual: 60-vote supermajorities have become standard operating procedure, and even some of the least controversial of President Obama's nominees have seen their confirmations stall for months at the threat of a filibuster. With politically charged climate and immigration legislation on the horizon, such obstruction isn't likely to go away anytime soon.
So who's at fault? According to University of Miami political scientist Greg Koger, we have fact-finding trips and golf courses to blame—not Mitch McConnell. Mother Jones spoke with Koger last week about today's Senate, how to fix it, and his forthcoming book: Filibustering: A Political History of Obstruction in the House and Senate, out in June.
Mother Jones: Over the last year and a half, a lot of journalists have used the filibuster to argue that Washington is broken. As James Fallows at The Atlantic put it, "One thing I've never heard in my time overseas is 'I wish we had a Senate like yours.'" Are we seeing a new phenomenon?
Greg Koger: What makes the current Senate distinct is not the rules, it's the way that senators are behaving. On the Republican side, there's an extraordinary willingness to filibuster the type of legislation they would not have filibustered in the past, whether we're talking about stimulus bills or broad-ranging health care reform when everybody knows that the system's broken. And then honestly, I think the Democrats have not done a very good job of playing the legislative side of the political process.
MJ: So what could Democrats have been doing that they didn't do? What kind of procedural quirks could they have taken advantage of?
GK: Well, one main thing is actually just to do a better job of coupling their legislative strategy with a public relations strategy. On health care, they fell behind because they spent a lot of time arguing with each other in public, which slowed down the bill. And when they did have a proposal, they just sort of dumped these enormous bills out there and said, "OK, you want health care? Here it is," and then allowed the opponents of health care to define what the bills were and what the flaws were. And most of the other Democrats were then caught flat-footed by this blowback, and they were unprepared to explain the finer points of the legislation.
From a political point of view, it might have been helpful for the Democrats to find the way to break the bill into pieces and vote on it in sort of easy-to-understand digestible pieces. And the Democrats argued that the legislation had to move as one big piece because all the pieces fit together, and that makes sense as a legislative argument. But still, politically it would have been better to move it piece by piece, so that you have a conversation about the individual sectors of the bill and everybody would understand, "Ah yes, there is no 'Death Panels' subheading of the bill."
MJ: Besides breaking apart the bill and moving them in separate pieces, are there any sort of parliamentary tricks you came across in previous pieces of legislation that were conspicuously absent?
GK: Back on the political side of things, if the Democrats know Republicans are going to filibuster anything they put on the floor, then the strategy should be to put things on the floor which are embarrassing to filibuster. And they finally started figuring this out in 2010, when they had this blowup with Jim Bunning blocking the unemployment-insurance extension. And the Democrats sort of fired up their public relations machinery and said, "Really? People have been unemployed for the better part of the year, and one person is going to keep that from going through the Senate?" Just the embarrassment factor forced the Republicans to cave.
MJ: Speaking of embarrassment, that's one of the problems that came up when I spoke with a pollster about Senate reform: It's impossible to get a sizable percentage of the public to care about debates about Senate procedure. Have you found instances where the public will get really engaged and take sides?
GK: Actually, I believe the pollsters are correct. Most people don't care very much about procedure. I will say that in the mid-20th century, the battle over the Senate cloture rule was so closely identified with civil rights that people did ask lots of questions about procedure. So in 1952, there was this Southern senator, Sparkman, running as a vice president on Adlai Stevenson's ticket, and it was news—not front page news, but it was news—when he was asked how he would rule as vice president on whether or not the Senate was a standing body. So under the right circumstances, people can learn about the implications of the rules and care a little bit. But for the most part I don't think they'd really get involved.
I think to the extent that procedure gets tied to some broader phenomenon, then it can be powerful. So once people understand the Republicans are able to block legislation when they stand together, then it's credible to say, in the 2010 cycle, Republicans are the party of "No" and they are a hindrance on not just the president's agenda, but just sort of effective government.
MJ: When you were going through the research was there anyone who really stood out as the King of Filibuster?
GK: I developed a real fondness for Huey Long. The thing is, he's only a senator from, what, 1932 to 1935? But he was just a…he was just a lot of fun. He had a bone to pick with Roosevelt and the Democratic leaders, and so he would just come to the floor and filibuster a lot. And when he did, he was very colorful.
MJ: How did the founders come down on this? Did they have any idea that 200 years later, Huey Long was going to be reading out of his cookbook?
GK: Well, the important point just to dispel any rumors out there, is that the right to filibuster is not written into the Constitution, and it's not as if the founders wanted filibustering to happen. They didn't advocate it. So that's the first point. The second point, though, is that as they were writing key provisions of the Constitution, they sort of anticipated that the rights they were putting into the Constitution could be used to filibuster. Things like what the quorum threshold is, how many people it takes to call for a vote, those are in there for different reasons; there are sort of good-government reasons to have those provisions in there. It's just that at the same time they could be abused. And they knew it.
MJ: So what's your explanation for the rise of obstructionism in the Senate? Is this all Mitch McConnell's fault?
GK: [laughs] No, no, it definitely precedes Mitch McConnell. The underlying story is that the ways that senators filibuster have changed dramatically. There used to be these wars of attrition where it was a contest to see which sides of the debate could last longer. And then we switched; the senators then switched to just seeing who had enough, the people wanting to do something, had enough votes to shut off debate. And underlying that was that the time of senators became much more valuable to them. They had lots of other things they could be doing. The senate had a lot more business to try to deal with, and when you put that together we spend a week, a month, trying to have one of these long debates. It just wasn't worth it to them anymore.
MJ: So you're saying they just had so much more to do?
GK: Yeah, well, part of that is what the individual senators could also be doing with their time. Especially, airplanes meant that senators could be flying across the country or flying over to Europe to find facts or visit their constituents...
MJ: Or play golf with Jack Abramoff.
GK: Or play golf in Scotland with their favorite lobbyist. And compared to that, sitting in the Senate all night listening to somebody else talk was a very unproductive use of their time.
MJ: What specifically could they do to correct the balance?
GK: Well, one of my favorite ideas—and I can't take full credit for this, because it was proposed by Gregory Robinson and another guy from Binghamton in a Roll Call article—but the idea is, you switch the burden on cloture voting so that debate gets shut off unless 41 people vote against cloture. And in particular you might also reduce the amount of time between filing cloture and holding a vote.
MJ: So instead of requiring that Robert Byrd be there for 60 votes, you just get to 41 and if you oppose it, you have to show up.
GK: Yeah. So if 41 Republicans want to block, say, financial reform, they can, but they have to be in DC seven days a week, 24 hours a day, in case there's a cloture petition. Whereas, you know, if you want the bill to come up for a vote, then you can go to your fundraisers, go back to your state, sit in committee, go to your office. The people who want something to happen wouldn't have the onus on them to make something happen.
One of the broader points in my book is showing that previous attempts to reform the Senate cloture rule have not reduced obstruction. After the rule was first adopted in 1917, there was more filibustering. After the threshold for filibustering was reduced to its current level in 1975, there was an increase in filibustering. So changing the rules doesn't necessarily mean you get less filibustering.
MJ: Along those lines, are there unintended consequences that come to mind if you were to just eliminate the filibuster outright (other than the obvious fact your party won't always be in power)?
GK: Yes. Well, two main points. One is that if you eliminate the filibuster entirely, the Senate will become a lot like the House. And that's not really a good thing. In the House, the majority party is able to push through legislation that it wants. And part of the reason it can do that is that the incentives provided by a combination of House party leaders, the president, and interest groups can buy off marginal members or undecided members to get things through.
The other thing is that the House operates with a bare minimum of debate. So even if you really liked, say, the health care bill and the financial reform bill that passed the House, as small-d democrats it's got to make us a little bit nervous that they passed, after a few hours of debate, and with a bare minimum of amendments—I think the Republicans got one amendment when the health care bill passed, which of course was defeated on a party-line vote. And that occurs because the majority party is able to dictate the terms of debate. In the Senate, typically the majority party has to bargain with the minority party, and what you get is a longer conversation and a lot more amendments. Some of those amendments might improve the legislation. Some of them are just opportunities for minority party members to make their point, so that their constituents feel represented.
MJ: Now that you've spent so much time researching Senate procedure and the various ways in which bills really don't become laws, do you find it more difficult to watch something like Schoolhouse Rock?
GK: [laughs]. Yes. Actually my adviser, Barbara Sinclair, she wrote the book about this. About how, she didn't phrase it this way, but it's about how Schoolhouse Rock doesn't make sense any more. The filibuster is one way in which the legislative process is fundamentally different. But also just more broadly, Congress seems to really struggle to get anything done, increasingly, and so when things do get done, they often get done in these really weird ways. Everything gets bundled, all the appropriations bills get bundled together in one big bill and get passed really fast, tied to an increase in the debt limit or a congressional continuing spending resolution that has to pass that day. Or you get these omnibus bills at the end of a Congress, where other bills get passed just because there's one line that says, oh by the way, HR 22 is also passed.
Aside from the filibuster, Congress just seems to have a difficult time with the basic task of legislating in a normal way. And doing its job, which is passing legislation and appropriations bills and re-authorization bills in a timely manner.
And in that sense, the critics like Fallows have a really good point. Congress is not right now a healthy institution. But the filibuster is just a part of that dysfunction.
MJ: So you sort of attribute the increase of the filibuster to issues of time. What do you attribute the overall general dysfunction to?
GK: That is a good question. I want to answer, but part of the problem is the answer is well outside of my research. I've studied the filibuster. My impression is that the way to answer that question is to look at two things: What's driving the polarization of legislators so that Republicans feel that the consequences for agreeing with the Democrats would be extraordinary, and Democrats don't feel that when they're in the minority, many of them don't feel that they can safely agree with Republicans. And the other thing is I think, too, I would also identify campaign finance as a possible source of stalemate. I'm sure your readers are familiar with that argument.