Filibustering: A Political History of Obstruction in the House and Senate

Overview

In the modern Congress, gaining the sixty votes necessary to shut off a filibuster in the Senate is one of the highest hurdles for major bills or nominations. But this wasn't always the case. Both citizens and scholars tend to think of the legislative process as a game played by the rules in which votes are the critical commodity—the side that has the most votes wins. In this comprehensive volume, Gregory Koger shows, on the contrary, that filibustering is a game with slippery rules, in which legislators who ...

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Filibustering: A Political History of Obstruction in the House and Senate

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Overview

In the modern Congress, gaining the sixty votes necessary to shut off a filibuster in the Senate is one of the highest hurdles for major bills or nominations. But this wasn't always the case. Both citizens and scholars tend to think of the legislative process as a game played by the rules in which votes are the critical commodity—the side that has the most votes wins. In this comprehensive volume, Gregory Koger shows, on the contrary, that filibustering is a game with slippery rules, in which legislators who think fast and try hard can triumph over superior numbers.

Filibustering explains how and why obstruction has been institutionalized in the U.S. Senate over the last fifty years, and how this transformation affects politics and policymaking. Koger also traces the lively history of filibustering in the U.S. House during the nineteenth century and measures the effects of filibustering— bills killed, compromises struck, and new issues raised by obstruction. Unparalleled in the depth of its theory and its combination of historical and political analysis, Filibustering will be the definitive study of its subject for years to come.

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Editorial Reviews

Bruce I. Oppenheimer

Filibustering offers an impressive theory of obstruction that undercuts conventional wisdom on the filibuster and provides the most complete analysis of this important topic than has previously been available either in one source or collectively.”

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Product Details

  • ISBN-13: 9780226449654
  • Publisher: University of Chicago Press
  • Publication date: 6/1/2010
  • Series: Chicago Studies in American Politics
  • Pages: 229
  • Sales rank: 1,460,159
  • Product dimensions: 5.90 (w) x 8.90 (h) x 0.60 (d)

Meet the Author

Gregory Koger is assistant professor of political science at the University of Miami. Previously, he worked as a legislative assistant in the U.S. House of Representatives.

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Read an Excerpt

FILIBUSTERING

A Political History of Obstruction in the House and Senate
By GREGORY KOGER

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2010 The University of Chicago
All right reserved.

ISBN: 978-0-226-44965-4


Chapter One

Introduction

Over the last fifty years, there has been a quiet revolution in American politics. A major hurdle has been added to the legislative process: the ability of senators to block bills and nominations unless 60 percent of the Senate votes to override a "filibuster." Unlike the president's legislative veto, which is written into the Constitution, the "right" to filibuster in the Senate is based on tenuous precedents and informal practices. At no point did senators consciously choose to remake their chamber or transform American politics. It just happened, and it happened so quietly we barely noticed.

The rules of the Senate allow senators to end a filibuster by invoking cloture. As currently written, this rule limits debate on a bill or nomination to thirty hours if—and this is the critical point—three-fifths of the Senate vote to impose the limit. Now more than ever, senators use this rule frequently as their only antidote against a rash of anyone against anything. During the 110th Congress (2007–8), the Senate voted 111 times (16.9 percent of all roll call votes) on the question of whether cloture should be imposed. Yet, the more senators use this rule and refine it to make it more effective, the more they filibuster. This book argues that this is no coincidence: filibustering has not increased despite senators' increased use, and improvement, of the cloture rule; it has increased because of it. To unravel this paradox, we need a clear understanding of the "obstruction game"—the tactics and strategy of filibustering. We also need to trace the history of filibustering in Congress; the present is confusing because we do not really understand the past.

A TALE OF TWO SENATES ... AND A HOUSE

One reason it was difficult to notice the transformation of the Senate is that filibustering has become an invisible act. The American Heritage Dictionary (4th ed., 2000) defines filibuster as "the use of obstructionist tactics, especially prolonged speechmaking, for the purpose of delaying legislative action." Modern senators, however, do not make long speeches to prevent a vote. Nor do they use other typical forms of filibustering, like forcing dozens of unnecessary roll call votes or refusing to participate in floor votes. Instead, a typical "filibuster" occurs when a senator refuses to agree to a time to hold a vote on a measure and, implicitly, threatens to drag out the debate indefinitely.

This new veto empowers Senate minorities to frustrate majorities. Despite their 58–41 majority at the beginning of the 111th Congress (2009–10), Senate Democrats were compelled to trim their first major bill, a "stimulus" package of spending and tax cuts, from $940 to about $780 billion ($787 billion in the final law) to gain the votes of a centrist bloc of moderate Democrats and three Republicans—Susan Collins and Olympia Snowe of Maine and Arlen Specter of Pennsylvania—a price of $35 billion in cuts per Republican vote. Three weeks later, Democratic leaders had to stall an omnibus spending bill because they were one vote shy of the sixty votes they needed. Of course, Senate Democrats could have had that extra vote if Al Franken, the Democratic candidate in the 2008 Minnesota Senate race, had become a senator after he was certified as the winner of the election on January 5. However, they dared not do so because Republicans threatened to filibuster if an attempt was made to seat Franken before his opponent, Norm Coleman, exhausted his court challenges (see Schatz 2009; and Raju 2009).

Filibustering has not always been so easy, nor has the majority always been so passive. A century earlier, in the midst of a financial crisis, a small band of senators led by Robert La Follette (R-WI) struggled to block a banking bill they considered a gift to the financial elite. On May 29, 1908, La Follette prepared to occupy the floor of the Senate until dawn. He covered his desk with books to read aloud when imagination failed him. Whenever attendance was low, he requested that a majority of the Senate be rounded up to hear him speak. His filibuster lasted for eighteen hours; when he passed on the task of holding the floor to a coconspirator the next morning, his voice was still strong, but his feet were sore from standing. However, the bill passed hours later, hastened by some impromptu restrictions on filibustering and trickery by Senate majority leader Nelson Aldrich (R-RI). While La Follette lost this legislative battle, he won a larger political victory. His ostentatious filibuster—the longest on record until the 1950s—lingered in public memory for decades and solidified his credentials as a Progressive rebel against the Republican establishment.

Over the last century, there has been a dramatic evolution in how legislators filibuster. Classic filibusters were contests of endurance, not votes. They were dramatic and unscripted marathons. And they were exceedingly rare. Modern filibusters are so common that the sixty-vote threshold for cloture is the de facto requirement to pass most major legislation and threats to filibuster permeate the day-to-day operations of the Senate. The institutionalization of this "sixty-vote Senate" constitutes a historic development in the legislative process.

Why, when, and how did the classic Senate of La Follette's day become the staid Senate of today? The central claim of this book is that classic filibustering was a bargaining game and that, consistent with theoretical analyses of bargaining, the team that was more patient tended to win (Bawn and Koger 2008; Rubinstein 1982). Obstructionists had to make effort to stall the Senate, while the majority had to be willing to wait for them to make a mistake or become exhausted. In the early twentieth century, majorities were generally pretty patient unless some deadline loomed, so filibusters were fairly rare. As the workload of the Senate increased and opportunities to travel expanded, senators became too impatient to wait out a filibuster. The turning point was the 1960s, when they began using a previously dormant cloture rule to quell obstruction on major bills. In doing so, they reduced the incentives against filibustering since anyone could threaten to filibuster any proposal without fearing that he or she would have to hold forth on the Senate floor for hours. The sixty-vote Senate is the product of impatience.

This cycle of decreasing costs and exploding obstruction has occurred before in congressional history. During the nineteenth century, members of the U.S. House of Representatives used a variety of parliamentary tactics to slow legislation and, eventually, completely paralyze the lawmaking process. Franklin Burdette writes in his classic book on filibustering: "Tactics patently obstructive ... were characteristic of the House long before they became common in the Senate" (1940, 14). Unlike the modern Senate, however, the members of the House responded to this gridlock with drastic reforms to ensure that the majority can work its will (Binder 1997; Dion 1997; Schickler 2001), and these reforms dramatically increased the ability of House majorities to pass legislation (Cox and McCubbins 2005).

The U.S. House offers an interesting comparison with the Senate. The two chambers were born from the same Constitution and nurtured in the same political environment. By studying such similar cases, we can better understand how the institutional features of a legislature—such as chamber size—promote or discourage filibustering. No previous study of filibustering has covered the entire scope of congressional history. This bicameral approach provides a fuller view of filibustering in congressional history and helps us think in general terms about legislative obstruction wherever we see it. After all, the U.S. Congress is not the only legislature that tolerates filibustering; while searching for news articles on the U.S. Senate, I found references to obstruction in twenty state legislatures, nineteen foreign legislative bodies, and the United Nations. Hence, the broader purpose of this book is to develop a general framework for studying obstruction and apply that framework to the puzzling history of the U.S. Congress.

This project is vital to our understanding of the Senate, the lawmaking process, and legislative parties. Filibustering is the defining activity of the contemporary Senate, as a senior leadership aide explained: "Obstructionism is woven into the fabric of things. The [party] leadership deals with it on a day-to-day, even a minute-to-minute basis.... [Y]ou can't underestimate the importance of it. There are offshoots of obstructionism every day" (quoted in Evans and Lipinski 2005, 228). Filibustering touches most major legislation in today's Senate, and, historically, filibusters have been at the center of some of America's most important decisions. Filibustering is also critical to the study of when Congress is more likely to pass important laws (e.g., Binder 2003; Chiou and Rothenberg 2003, 2006; Clinton and Lapinski 2006; Krehbiel 1998; Mayhew 1991), including research utilizing the pivotal politics model discussed below. For this body of research, the key findings are that there was ample filibustering in the historic House and, especially, that the influence of Senate filibustering is contingent on whether Senate majorities have enough time to outlast obstruction. In comparison, the existence of a formal cloture rule and the threshold for imposing cloture have relatively little effect.

Filibustering is an interesting counterweight to the polarization of congressional parties, another topic of popular and scholarly interest (e.g., Lebo, McGlynn, and Koger 2007; McCarty, Poole, and Rosenthal 2006; and Theriault 2008). Curiously, the rise in congressional partisanship since 1970 has coincided with a surge in Senate filibustering, with the result that our ever-stronger parties in Congress face ever-increasing hurdles to their legislative goals. Historical studies of congressional parties suggest that they have long possessed "negative agenda power," that is, the ability to keep some proposals from reaching the chamber floor (Campbell, Cox, and McCubbins 2002; Cox and McCubbins 2005; Gailmard and Jenkins 2007). We shall see, however, that legislative minorities with the power to block legislation may use that power for "positive" ends by bargaining to push issues onto the chamber floor.

RESEARCH ON FILIBUSTERING, PAST AND PRESENT

Despite the substantive and theoretical importance of filibustering, political scientists have generally avoided the topic. It is telling that a recent major work on filibustering, Sarah Binder and Steve Smith's Politics or Principle? (1997)—the first book on obstruction since Burdette (1940)—was organized as a refutation of myths about filibustering because myths flourished in the absence of scholarly research. Binder and Smith point out that filibustering in the Senate was neither intended by the authors of the Constitution nor common in the nineteenth-century Senate. Historically, they claim, legislators have obstructed for partisan and parochial ends as well as on important matters of principle, while voting on cloture and cloture reform is based on political and policy interests. Thus, filibustering is a form of ordinary politics and can be studied using the techniques of contemporary political science.

And filibustering is a worthy topic for study. It has increased dramatically over the last fifty years (Beth 1994; Binder and Smith 1997; Oppenheimer 1985; Sinclair 1989) to the extent that we now have a sixty-vote Senate (Sinclair 2002) because cloture is often necessary for the passage of a major bill. Since the contemporary Senate is polarized along partisan lines (Theriault 2008), modern filibustering is often a partisan contest, with a united minority party blocking majority party proposals for some sort of political gain as well as policy payoff (Binder and Smith 1997; Evans and Lipinski 2005; Evans and Oleszek 2001; Sinclair 2006). The emergence of this filibuster-saturated environment motivates research on how it works and why it developed.

The Pivotal Politics Model

In a major work, Pivotal Politics (1998), Keith Krehbiel incorporates the Senate filibuster into a simple model of the legislative process. In this model, the Senate filibuster is one of the fundamental "pivots" in American politics on par with the presidential veto: no policy change occurs unless a legislative coalition can override a filibuster and circumvent a veto. The pivot model highlights the importance of the cloture threshold for shutting off a filibuster, explains how filibustering reduces the significance of divided versus united party control of Congress and the presidency, and has inspired others to apply and amend the pivot approach (e.g., Alter and McGranahan 2000; Brady and Volden 2006; Chiou and Rothenberg 2003, 2006).

Although the pivot model was developed to explain the lawmaking process of the 1990s (Krehbiel 1998, xiii), scholars have applied this framework to the post–World War II era (Chiou and Rothenberg 2003; Krehbiel 1998), the period 1921–94 (Krehbiel 1998, chap. 5), and the period 1881–2000 (Chiou and Rothenberg 2006). With the exception of Chiou and Rothenberg (2006), these analyses do not account for variation in the "price" of obstruction and, hence, the willingness of senators to take advantage of their right to filibuster. Indeed, Krehbiel (1998, 96) is "agnostic" about whether filibustering has increased over time.

However, we cannot understand filibustering without a clear account of how the Senate became a sixty-vote chamber. Subsequent research finds that, before Rule 22 was enacted in 1917, simple majorities in the Senate were often able to pass legislation (Chiou and Rothenberg 2006; Wawro and Schickler 2004, 2006), and even in the 1930s it seemed that senators expected the majority to win (Mayhew 2003). As a result, we need to look beyond the formal rules of the Senate to understand the true impact of filibustering and how that impact has changed over time.

The Emergence of the Sixty-Vote Senate

Political scientists have proposed several explanations for the proliferation of Senate filibustering. Bruce Oppenheimer (1985) began the conversation by attributing the increase in filibustering to the rising legislative workload. As the role of the federal government in American society increased over the course of the twentieth century, the workload of the Senate swelled, the time of the Senate became more valuable, and threats to waste the Senate's time by filibustering became more credible and frequent. Like subsequent scholars, Oppenheimer faced the challenge of measuring the crucial elements of this story: the value of time and the frequency of filibustering. He measures time constraints in the Senate with pages of the Congressional Record (1931–56) and the length of sessions (1950s–70s). He uses the number of cloture votes to measure filibustering but also notes that they are not an accurate indicator of obstruction since senators did not always apply the cloture process to filibusters.

Several subsequent sources endorse Oppenheimer's account (Binder and Smith 1997; Koger 2002; Sinclair 1989)—and for good reason. However, that account leaves two tasks for future researchers: developing a more precise measure of filibustering and devising a more specific measure of the value of legislators' time. The lack of such measures has made it difficult to integrate Oppenheimer's "time constraints" approach into subsequent research. Researchers whose work is based on the pivot model, for example, have generally ignored Oppenheimer and his work's implications for their theories and empirical analyses.

A second explanation for the recent boom in Senate filibustering is that Congress is becoming more polarized. Binder, Lawrence, and Smith (2002) analyze the number of filibusters—as cataloged by Beth (1994) and extended by the authors—from 1917 to 1996 and find that, among other factors, majority party strength and institutional innovations—but not external workload—are correlated with patterns of obstruction. A nagging concern, however, is that Richard Beth (1995) stresses that the list he prepared for the Congressional Research Service is based on varying and inconsistent standards for identifying a filibuster; hence, it should not be used as a reliable measure of Senate obstruction. Finally, Mixon, Gibson, and Upadhyaya (2003) study the number of cloture votes from 1959 to 1998 and conclude that the 1986 decision to broadcast Senate proceedings on cable television significantly increased the incentive for senators to filibuster for position-taking purposes. Of these studies, only Binder, Lawrence, and Smith (2002) test multiple explanations to determine which one provides the best fit to the pattern we observe. Furthermore, each uses data from a limited span of the twentieth-century Senate; a longer span and a comparison chamber would increase our ability to make general conclusions about the Senate and legislative obstruction.

(Continues...)



Excerpted from FILIBUSTERING by GREGORY KOGER Copyright © 2010 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

List of Illustrations vii

Preface ix

I Foundations 1

1 Introduction 3

2 A Theory of Obstruction 15

II The Historic Congress, 1789-1901 37

3 The Escalation of Filibustering, 1789–1901 39

4 Filibusters in the Historic Congress 57

5 Explaining Obstruction in the Historic Congress 78

III The Modern Senate, 1901-Present 97

6 The Growth of Filibustering in the Senate 99

7 Explaining the Rise of Filibustering in the Senate 133

8 From Attrition to Cloture: Institutionalizing the Filibuster 147

Afterword: The Future of the Senate 189

Notes 201

References 215

Index 227

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