The rise of the filibuster: An interview with Barbara Sinclair
Barbara Sinclair is a political scientist at UCLA who specializes in Congress. She's also one of relatively few scholars to have quantified the rise in the filibuster over the previous few decades.
You've published a study showing that about eight percent of major bills in the 1960s faced filibusters or filibuster threats and 70 percent of bills in the current decade did the same. Tell me a bit about the methodology.
My definition of major legislation is as follows: the things that CQ lists as "legislation to watch." It used to be called "major legislation." in addition, bills that had what CQ called "key votes."
That's an agenda with about 40 to 60 pieces of legislation per Congress. It's not naming post offices, but it's not just Medicare either. I've been gathering this data over time, and I select Congresses and do a case study of each bill. The way in which I get those figures on the percentage of major measures that ran into some kind of extended debate problem is really from reading what various sources write about these bills, from CQ to the New York Times to the Congressional Record. I don't just look at cloture votes.
Because you're looking also at threatened filibusters?
Right, so if people put a hold on a bill. Or if the bill isn't brought up due to the threat of a filibuster.
And is there a particular moment where the filibusters accelerate? Or is the rise gradual?
It's gradual, to some extent. But in terms of its impact on legislation, it really has a big impact from the first Clinton Congress on. If one can say there's a break point, that's where filibusters become a regularly used partisan tool.
Previously, the filibuster frequently had some partisan element, but you'd have a lot of cases where individuals or small groups would hold them. But now it's much more a tool of the minority party. And the minority party is organized and relatively large, even when it's small by our standards. Forty Republicans is as small as it's been in a long, long time. That still means if you really get the minority to hang together, everyone on the other side becomes key.
Which is how you get the process we jut saw, where Lieberman and Nelson and others become absolutely must-have, can't-lose votes.
And that means it's an invitation to extortion.
What's the story that you tell your students, or that political scientists tell their students, about the rise of the filibuster? Why did it happen?
It's not a simple story. in the more recent period in the 90s and on, it does have to do with partisan polarization. You have two fairly distinct and ideologically distinct parties. For example, one could make the argument that the first time it became official policy on the part of the minority party to use extended debate to deprive the majority of real victories was that first Clinton Congress.And then the Senate Republicans not only didn't pay a price, but they ended up gaining control. Then combine that with the fact that in a more polarized country, is harder to come up with deals that both the majority and minority think is better than the status quo.
So part of it is polarization, but part of it, you're saying, was a strategic realization that the American people do not reward the majority if it fails to deliver on its promises, and the minority recognized it had the power to keep the majority from delivering on its promises.
That's right, and we're seeing the result. It seems pretty clear that at some point early in this Congress, the Republicans really did decide their best approach was to bring Obama and the Democrats down. It is hard to make yourself popular, but to make the other guys look incompetent is not that difficult, and it worked for the Republicans in the first Clinton Congress, and the Republicans would argue the Democrats used these techniques as well.
What about filibuster reform? What's your assessment of the chances for that sort of project?
This goes way, way back. During all those years that the Southern Democrats were blocking civil rights legislation, every Congress began with liberal Democrats trying to change the filibuster rule and not getting anywhere. You do get a change in 1975, but part of why that was possible was the big Civil Rights stuff was off the table.
Technically, the rules made cutting off debate easier, because now it only required 60 votes rather than 67. But in reality, you had to do it more often. There was less restraint. The underlying cause is that the Senate -- our whole political system, really -- changed, and opened up in many ways. There were all kinds of ways that you could become a really big player through being partially outer-directed -- aiming yourself at the media and interest groups and the like. It was less necessary to simply be on really good terms with the most senior members of the Senate.