Yesterday, talking to Democratic Senators, the president offered some thoughts on the filibuster:
So the problem here you’ve got is an institution that increasingly is not adapted to the demands of a hugely competitive 21st century economy. I think the Senate in particular, the challenge that I gave to Republicans and I will continue to issue to Republicans is if you want to govern then you can’t just say no. It can’t just be about scoring points. There are multiple examples during the course of this year in which that’s been the case.
Look, I mentioned the filibuster record. We’ve had scores of pieces of legislation in which there was a filibuster, cloture had to be invoked, and then ended up passing 90 to 10, or 80 to 15. And what that indicates is a degree to which we’re just trying to gum up the works instead of getting business done.
I appreciate what the President is trying to do here and I agree with the spirit of his comments, but the history here is bad. There was no point in time when supermajority voting in the Senate was well-suited to the challenges of the time. Indeed, as David Mayhew has demonstrated it’s simply not the case that there was routine supermajority voting until the recent past. When FDR’s opponents were seeking to block court-packing and when LBJ was lining up support for Medicare, vote-counters assumed that a majority was needed to block initiatives.
The authentic tradition is of using the filibuster as an extraordinary technique for the specific purpose of maintaining white supremacy in the South. A Harding administration anti-lynching initiative fell prey to the filibuster back in the 20s. The Civil Rights Act of 1957 and the Civil Rights Act of 1960 both had to be largely gutted in order to surmount filibusters. And it was recollection of the filibuster’s specific role as a bastion of white supremacy that led to the bipartisan effort to reform the filibuster in 1975 when northern liberal Democrats teamed up with the Ford administration and many Republicans to cut the cloture threshold to 60.
The institution has always been pernicious, just as the malapportionment of the Senate has always been the result of a hardball political negotiation rather than expressing some underlying good idea about the design of political institutions. Part of what makes the filibuster a bad idea is that it’s viability depends on minority party restraint. But the nature of human psychology is to create a procedural downward spiral in which each time there’s a change of partisan control, the new minority steps-up its obstruction.