The Procedural Downward Spiral

One of the lost elements of history is how new the idea of the filibuster as a routine supermajority requirement is. David Mayhew, the Yale political scientist, published an excellent article on this subject back in 2003 (so you can hardly say he was motivated by Democratic partisanship) called “Supermajority Rule in the U.S. Senate”. His argument is basically that while filibustering was always possible, it was also sharply constrained by tradition. After all, a lot of things are possible in our system. To the best of my understanding, nothing is stopping Rahm Emannuel from sauntering onto the floor of the Senate, murdering Republicans from states with Democratic governors in cold blood, having them replaced by new Democrats, and then getting a pardon from Barack Obama.

But that would obviously be a sharp break with the traditions of our government! And filibustering was, historically, an extraordinary measure. It was traditional for it to be used by Dixiecrats to entrench white supremacy, but not for any other purpose, and thus could be understood as part of the corrupt bargain by which white America reunited after the civil war. But as Mayhew points out in other contexts — his detailed case study is FDR’s court-packing bill — nobody said they needed 40 votes to block leadership-supported measures, they said they needed fifty votes.

Today Ezra Klein offers a great historical find from a later era illustrating the point. Yale senior David Brockman found the following letter, from LBJ’s senate liason Mike Manatos to Larry O’Brien, one of LBJ’s key political aides. Its about the implications of the ’64 senate results for Medicare:

Of the 49 votes cast on behalf of Medicare (Gore amendment) on September 2, 1964, we lost two supporters in the last election — Senators Keating and Salinger.

However, we picked up five new supporters — Senators Bass, Harris, Kennedy (Robt.), Montoya, and Tydings.

We also had three supporters who missed the vote this year — Senators Bayh, Hartke, and Kennedy (Ted).

Thus if all our supporters are present and voting we would win by a vote of 55 to 45.

There’s no indication that at that time you needed 60 votes to pass bills. On a non-civil rights topic, party discipline was taken for granted on procedural motions.


You’ve seen an evolution since then, just as you’ve seen an evolution of the “hold” from a senatorial courtesy to a hardball political tactic. And I think the reason is the same. When you have any kind of tradition-constrained procedural gimmick, there are always going to be examples of using it that exist near the borders of tradition. That generates ill-will, which generates further border-pushing. If you look, for example, at the escalating obstruction of federal court nominees over the past 20 years you can see that we’re heading toward a dynamic where District and Circuit courts are going to be severely understaffed. And we’re still waiting for the day when a major SCOTUS filibuster leaves the court unable to function.