Unreformed What the Filibuster Can Tell Us about the Democratic Party

Not all use of the filibuster is as inspirational as Jimmy Stewart’s.

Not all use of the filibuster is as inspirational as Jimmy Stewart’s.

Want to know the difference between the Democratic Party and the GOP? Just look at the history of filibuster reform.

In common parlance, the party with the majority of the seats in either chamber of Congress is said to control that chamber. But in the Senate, a practice known as the ‘filibuster’ adds an interesting wrinkle. While a bill only needs a majority of votes to pass, before a vote can even be called it is first necessary to end debate on the bill. That takes 60 votes, and so a determined minority can kill a bill by refusing to allow it to proceed to a vote. This is known as a filibuster.

The practice has a long and fascinating history that I won’t go into, but the effect is to empower the minority party. There are a few things to say in favor of this, not the least of which is that it guarantees that the minority party cannot be entirely sidelined. In the House of Representatives, which has no similar measure, the minority party is almost wholly irrelevant. In the Senate, all Senators can have a voice in crafting policy and making sure the needs of their constituents are addressed.

In theory, this should make policy better and more sustainable. If the minority party is involved in crafting a bill, they’re less likely to gut it when they come into power – as they inevitably will at some point.

The downside, however, is also clear. The Senate, as I’ve mentioned before, is stunningly unrepresentative of the country as a whole. The filibuster accentuates this feature: it takes 41 Senators to bring legislation to a complete halt in the chamber, and those Senators could conceivably come from 21 states with only about 12% of the country’s population.

In actuality, it tends to not be so dramatic. The block of small states tends to be Republican, but it also includes states like Vermont, Delaware, and Rhode Island – which are not exactly GOP strongholds. When you throw in the very large and still red state of Texas, the votes in the Senate are not as undemocratic as the rules of the chamber would allow.

For a real world example, consider the vote in April on a bill expanding background checks for gun sales. The bill was defeated in the Senate after failing to gain 60 votes to end debate. Of the 50 states, Senators from 12 states split their votes – those states accounted for 22% of the US population. Meanwhile, both Senators from 22 states voted in favor of the bill, accounting for 53% of the US population, and both Senators from 16 states voted against the bill, representing 25% of the country.

If we imagine that the Senators from states that split their vote each represented half the population of their state, then the final vote was (by population): 64% in favor of proceeding to a vote on the bill, 36% opposed. Naturally, that bill didn’t get a vote.

A staunch segregationist, Strom Thurmond holds the record for the longest filibuster in the US Senate: 24 hrs and 18 min in opposition to the 1957 Civil Rights Act. Thurmond served as the Senator from South Carolina from 1954 until his death in 2003, first as a Democrat and then as a Republican. After his death, it was revealed that at the age of 22 he had fathered a child with his family’s 16-year-old black maid.

A staunch segregationist, Strom Thurmond holds the record for the longest filibuster in the US Senate: 24 hrs and 18 min in opposition to the 1957 Civil Rights Act. Thurmond served as the Senator from South Carolina from 1954 until his death in 2003, first as a Democrat and then as a Republican. After his death, it was revealed that at the age of 22 he had fathered a child with his family’s 16-year-old black maid.

But there’s another problem with the filibuster: it hampers accountability. The idea in a democracy is supposed to be that you elect leaders and then hold them accountable, but the filibuster introduces a perverse incentive: the minority party is empowered to stop legislation but isn’t saddled with the responsibility that comes from being seen as holding power.

The shortcomings of the filibuster have led both parties to seek reform at different times. Not surprisingly, the majority party (whoever that is) tends to want reform to allow more majority control, while the minority tends to decry that as a power grab. Big whigs on both sides tend to espouse caution even while in the majority – you never know when your fortunes will turn.

But within the context of such clearly self-serving thinking, both parties are not exactly mirror images in how they deal with and respond to the filibuster.

During George W. Bush’s second administration, Republicans in the Senate faced a concerted effort by the Democratic caucus to block judicial nominees by using the filibuster. In response, the Republican leadership, which ‘controlled’ the chamber, threatened to unilaterally change the rules on a simple-majority vote to limit the use of the filibuster. For arcane, even if very interesting, reasons, the very credible threat by Republicans to change the rules with 51 votes, rather than the 67 votes outlined in the Senate’s own rules, represented a potential Constitutional crisis.

In the end, the Democrats backed down by agreeing to a bewildering compromise: they could keep the filibuster, but they basically had to agree not to really use it.

If you fast-forward to the present day, the use of the filibuster has exploded in the Senate. And again the majority party – this time the Democrats – has threatened to unilaterally change the rules. And, once again, the minority party has agreed to limit its use of the filibuster in order to prevent the majority party from changing the rules.

At least that was the gentlemen’s agreement Senate Majority Leader Harry Reid supposedly reached with Minority Leader Mitch McConnell prior to this legislative session. The only difference is that the Republicans have basically gone on using the filibuster just as they had prior to the agreement.

In other words, they called Harry Reid’s bluff, and therein lies the difference: the Republican threat was credible, the Democratic threat is not.

Why not? A lot of people will tell you that it’s because the Democrats are naive and lack negotiating backbone, but that doesn’t hold a lot of water. The truth is that for all the bluster surrounding the filibuster, it serves an important function for the Democratic majority.

A ‘cloture’ vote is a vote to close debate and proceed on the bill: the blue line indicates instances when a Senator appealed for cloture, the red line indicates instances when a cloture vote was actually held, and finally, the green line indicates those times when the cloture vote was successful in ending debate.

A ‘cloture’ vote is a vote to close debate and proceed on the bill: the blue line indicates instances when a Senator appealed for cloture, the red line indicates instances when a cloture vote was actually held, and finally, the green line indicates those times when the cloture vote was successful in ending debate.

The Republican use of the filibuster stops legislation from coming to the floor that might pose a problem for conservative members of the Democratic caucus or Senators from red states. Mark Begich (D-AL), Mark Pryor (D-AK), Mary Landrieu (D-LA), Claire McCaskill (D-MO), Max Baucus (D-MT), Jon Tester (D-MT), Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), Tim Johnson (D-SD), Jay Rockefeller (D-WV), and Joe Manchin (D-WV) all have an easier time at reelection if they don’t have to take tough votes on issues their conservative constituents oppose.

The filibuster – while Democrats are in control – pulls legislation in a conservative direction and takes the most progressive ideas off the table. This is helpful for conservative Democrats, who would have to place themselves in a precarious political position if they had to spearhead those efforts themselves. In other words, the Democrats can’t credibly threaten to take away the filibuster because the filibuster provides members of their party with political cover.

The GOP, on the other hand, doesn’t have these problems. For one, the Republican caucus in the Senate is better disciplined and more homogenous. In addition, those members of the Republican caucus who are most willing to break with orthodoxy tend to be either orthogonal to the party’s beliefs, like Rand Paul (R-TN), or peripheral to party leadership, like Lisa Murkowski (R-AK) and Susan Collins (R-ME).

I know the popular analysis is that the two parties are drifting farther and farther apart as they both equally vacate some presumed common ground. This doesn’t really bear up under close scrutiny. While it’s true that there is less overlap than there used to be, there are still Democrats from red states who try to appeal to conservatives. Sometimes they run ads like this. At this time, there are no Republican Senators from blue states who try to appeal to liberals.

I’ve argued that that difference is why the Democrats and the Republicans approach the filibuster in different ways. You could also argue that it’s why the Democrats have a majority in the Senate; perhaps if the GOP had more room for liberal Republicans they’d control the chamber instead.

In 2014 we’ll have another midterm election and most prognosticators think the GOP might very well pick up the Senate and that, if they do so, it will be by defeating Democrats from conservative states. The irony would be if a weakened Democratic Senate caucus, purged of its conservative recalcitrants, was more willing to either use the filibuster in the minority or, if it somehow held on to a slim margin, do away with it altogether.

Follow Pedro on Twitter @IamPedroA.

Leave a Reply