By Robert Schlesinger, Thomas Jefferson Street blog
What to do about the filibuster? Frustration with the fact of having to cobble together 60 votes to pass anything of significance in the senate (and the frequently long odds against doing so) is spurring grumbling about whether a 60 vote filibuster is still a good idea. Filibusters are both well known in history (civil rights) and in contemporary politics, and that combination makes it easy to suppose that finding the votes to overcoming a filibuster has always been a regular step in the legislative process. Not so.
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.)
More anecdotally, Ezra Klein posts a December, 1964 Johnson White House memorandum that neatly illustrates how things have changed. In the memo one LBJ aide notes to another that due to senate seat pick-ups in the 1964 elections, Medicare seemed likely to pass with a vote of 55 to 45. Ezra adds:
"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.)
The American Prospect's Mark Schmitt traces the rise of the filibuster, noting how both custom has changed (making it more acceptable to filibuster) and how the parties have changed (becoming more ideologically homogenous, making it easier to organize and hold together a filibuster). (h/t again to Klein for flagging the piece)
So what to do? Before trying to change the rules (and either trying to abolish the filibuster or lowering the threshold to, say, 55 votes), Democrats should go to the mattresses and make filibusters real again. You could say that contemporary filibusters are all talk, or are no talk at all. Filibusters today are actually just the threat of filibusters. No one actually gets up and holds the senate floor for marathon sessions. Democrats should force the GOP to start literally talking bills to death. See how that works both in terms of public perception and legislative gumption.
But progressives shouldn't be too hasty to forcibly curtail this legislative minority right. Republicans will at some point in the future have the majority again and Democrats would miss the filibuster were it gone.