When Did the Senate Get So Bad?

Over at Talking Points Memo, a friendly argument has broken out between a former Senate staffer and a political scientist over what might be called the problem of the Senate. That's the kind of fight I have to jump into!

In summary, the two viewpoints on filibusters are: (1) Something changed in the culture of the Senate, and filibusters used to be rare, mostly threatened by individual senators or factions who wanted some change to a bill rather than to block it completely. (2) It's a much more structural change, and in the past there were often large bipartisan majorities that wanted to pass major legislation, so the filibuster wasn't even an issue. (With the notable exception of civil rights.)

Both are probably right: In terms of culture and custom, the turning point was almost certainly the previous health-reform debate, in 1993 and 1994. That's when Bob Dole, then the majority leader, made the phrase "You need 60 votes to do anything around here" his mantra, and when -- thanks to Bill Kristol's famous memo -- the idea of blocking major legislation for political reasons, rather than trying to get it revised to reflect your own policy preferences, took hold. Maybe I put too much weight on that period because that happens to be when I worked in the Senate, but there's no doubt that at that time, a whole bunch of obstructionist techniques came out of the dusty toolbox, such as "filling the amendment tree" and, in the House, the motion to recommit a bill to conference. (I once witnessed Ted Kennedy asking staffers for advice about how to break one of these tactics, which he had never seen in 34 years in the Senate.)

Underlying that, of course, was the structural change that came with the realignment from a four-party system, in which each party had a liberal and conservative wing, to two ideological parties. (A center-left party and a far right party.) As frustrating as today's conservative Democrats like Mary Landrieu are, none of them are more conservative than any Republican, and no Republican is more liberal than even the most conservative Democrat. As a result, a filibuster can be organized and enforced by a party leader, whereas in the past, there was considerable ideological overlap, so both sides of a fight would be cross-partisan, and thus loose and shifting.

In the old Senate (up to the early 1990s), there were dozens of possible configurations that could produce legislation that won broad majority support. You could see it quite visibly in the Senate Finance Committee when Lloyd Bentsen of Texas was the chair -- from the center of that horseshoe dais, he might put together a coalition on the center-left one day, and one on the center-right the next, and if he played the politics right, the vote in committee would typically be something like 17-4, with a similar majority on the floor. My boss, as one of the more liberal members, was sometimes in the majority coalition and sometimes a dissenter -- it changed all the time. As debate began, it was hard to predict the final vote. But to watch Max Baucus maneuver in the same committee last month, you had to sympathize with how little he had to work with: Forty percent of his members were completely opting out -- any amendments they offered were purely symbolic or intended to support a talking point in opposition. The only coalitions available were a totally Democratic one and one that included Olympia Snowe. On the Senate floor, it's the same thing -- with a hundred senators, there are in theory, some mathematically unimaginable number of coalitions. But in reality, there are only two: Keep every single Democrat, including red-staters up for re-election and the now unabashedly malevolent Joe Lieberman, or lose one and get Olympia Snowe. There are no other options, and no legislative wheeling-and-dealing will open up any other possibilities.

As a result the Senate feels suffocating. It's easy to fantasize that maybe a tougher or more creative Harry Reid could do something, but even LBJ would be stuck if he drew this hand. The combination of the change in custom -- which involves not just using the filibuster to excess, but pushing to defeat legislation regardless of its content, for political purposes -- and the particular alignment of parties leaves shockingly little room for legislative maneuvering.

-- Mark Schmitt

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