Last Wednesday, Joe Biden woke up ready to do something he’d never done before: break a tie vote in the Senate. In five years as Vice President, he has not once been called upon to engage this lone responsibility of his office. His record of zero votes as ‘President of the Senate’ is rare in American history. Only three full-term VPs before him have never cast a vote (eleven overall) and Biden is already the longest serving second-in-command to never break a tie. So why the record streak?
Partisan rigidity offers some explanation. With parties further apart in ideology, the personal appeals and horse-trading that might have once evened the score now paint targets on the backs of moderate senators. Deals are made, but polarization raises the costs to dealmakers (and the last Congress was the most polarized ever), making close votes scarce in Washington. Democrats’ sizable Senate majority in the Obama administration’s early years also made a 50-50 split unlikely.
Perhaps most importantly though, in the last five years, a ‘close vote’ has actually meant the number 60 rather than 51. The GOP’s unprecedented use of the filibuster raised the effective threshold for passing laws to 60 votes, the number needed for “cloture,” the parliamentary procedure that ends a filibuster.
This once rare legislative maneuver has become the yardstick by which all federal legislation is now measured.
The filibuster is a product of evolution rather than conception. Though it’s come to be considered a right of the minority, the notion of such a rule never appeared in constitutional debate. It came about by default through another President of the Senate, Aaron Burr.
In his final acts as the nation’s third Vice President, Burr sought to clean up the rules of the young legislature. He decided that, as no one used the common parliamentary procedure to end discussion of a matter, the Senate would be simpler and better off without it. And so without anyone (including even himself) realizing it, he created what is now the limiting factor of all lawmaking in the United States.
In a strange coincidence of history, Aaron Burr created the filibuster not long after his famous duel with Alexander Hamilton. This Senate rule notorious for its absence from the Constitution was thus brought into being by a man who had, only a few months earlier, shot to death one of the Constitution’s key architects.
Evolution of the Filibuster
Though it existed as a possibility for several decades, the filibuster first came into use in the 1830s. The first cloture vote ended debate on the Treaty of Versailles in 1919 and the modern threshold of 60 votes began only in 1975.
Before the 1975 change, when the filibuster was more personal theater than political threat, getting a politician to quit holding their urine and sit down required two-thirds of senators “present and voting.” The Senate had to pack into a room together for prolonged displays of a single senator’s perseverance and moralizing oratory. These were the black-and-white days of Mr. Smith. It’s no surprise that the most famous filibusters (Long in 1935, Morse in 1953, Thurmond in 1957) all took place before the modern rules. They held an attractively American image: one of a righteous underdog standing up to power and rallying the people behind him.
Jimmy Stewart wouldn’t recognize the modern filibuster though; it’s been sharpened from a blunt object of last resort to the weapon of choice for any major legislation. Despite its omnipresence these days, the filibuster is also a weapon typically kept sheathed. Republicans need only threaten a filibuster to kill a bill rather than go through the comic theatrics of reading Dr. Seuss to the nation. The rules needed to change. And in November, they did. A bit. Majority Leader Harry Reid triggered the ‘nuclear option’ and ended the Senate’s ability to filibuster presidential nominees to federal agencies and judgeships. Proponents of reform, myself among them, celebrated the change.
Meet The New World
Last Wednesday’s confirmation attempt of DOJ Civil Rights nominee Debo Adegbile was the first appointment vote since the ‘nuclear option’ changed Senate rules on these votes. Biden finally had a shot at putting himself on the board and voting as Vice President in the the legislative body he’d served in for thirty-six years. A tie-breaker wasn’t necessary though. Seven Democratic senators broke with the party and voted against Adegbile’s nomination.
Despite a step forward in confirmation votes, all legislation and Supreme Court nominations are still held to the filibuster’s 60 vote threshold. The more absurd political practice of holding up all federal appointments is over, but the problem posed by the filibuster remains. Writing on Quora, historian/podcaster Bruce Carlson describes this problem well:
“A filibuster gives power not to the Senate, but to the individual Senator… The argument cannot be made that the Founders, Framers (there were many many people that could be founders, too many to fill any room available at the time) wanted a filibuster… It is simply a Senate rule that’s been changed over time… My own personal view is that it is too much power for one person out of 317 million in American government to hold up legislation. It should be eliminated or, if some of the idea is to be retained, cloture should be made even easier, maybe a few votes above majority, so that one individual, elected in a very unrepresentative fashion does not have supreme power over legislation.”
By the Numbers
Although it’s no surprise, the number ‘one person in 317 million’ stands out in Carlson’s writing. One senator can unilaterally halt federal legislation. The only other person with that sort of power is the President, who, unlike a senator, is politically liable to the entire country and represents hundreds of millions of Americans. The President holds many powers we might consider too broad for one American, were it not for a nationally elected mandate. A senator has no such mandate though.
If elected from a smaller state, a senator may represent only a few hundred thousand Americans, less even than the size of the average Congressional district (~700,000 people). In the 113th Congress, nine senators (nearly a fifth of the Senate) were elected with fewer than 200,000 votes to their names: John Barrasso (R-WY), Mark Begich (D-AK), Chris Coons (D-DE), Mike Enzi (R-WY), Heidi Heitkamp (D-ND), John Hoeven (R-ND), Patrick Leahy (D-VT), Lisa Murkowski (R-AK), and Jon Tester (D-MT).
This group is strikingly evenly split by party: five Democrats and four Republicans. Of course, votes and represented population are different. Not everyone votes and, of those that do, a politician needs to convince only half to win an election.
The apparent unfairness of the filibuster, as its power is stripped away, seems to betray an underlying unfairness of the Senate itself. When Reid reformed filibusters of federal appointments in November, Emily Bazelon, Slate’s Legal Affairs Correspondent and co-host of the wonderful Political Gabfest, had this to say:
“I am in total feeling of ‘ding-dong the witch is dead,’ partly because I’ve just hated the filibuster for a long time as being anti-democratic and giving what’s really a minority of the minority so much power. Because the Senate is already constructed in a way where a minority of states have a lot of control. And so the filibuster was just taking things to the point where you could really have 60-70% of the country for something and not have it happen.” (audio below)
Another striking number: 60-70%. Does the filibuster really insulate the Senate that far from popular opinion?
Even more so: 89% of the country could be in favor of legislation and see it fall to a filibuster.
If you consider senators by the populations of their states, a filibuster-proof minority of 41 senators could collectively represent only 11% of America (34 million of 315 million, the U.S.’s 2013 population). That share would equate to California having veto power over all federal legislation. As a Californian, the notion has its appeal, but as an American, I’m dumbfounded that politicians representing the equivalent of a single state can wield that much power.
This 11% number is a theoretical limit of course: the two parties field senators from both large and small states. Even so, if this filibuster-proof minority were composed only of 41 current Republican senators, they could represent as little as 26% of all Americans (or, 83.5 million). This lowered threshold is still worse than Emily Bazelon’s ballpark 60-70% figure: it means, quite realistically, that 74% of the country could want legislation and see it fall to a filibuster.
Only Symptoms of a Problem
As bad as these numbers are, the striking fact is: they’re not much worse than a Senate vote without a filibuster. While 41 senators can represent as few as 34 million Americans, 51 senators can represent as few as 53.7 million. Without the filibuster, the minimum amount of the population that can block legislation improves from 11% to 17%.
Not a tremendous gain. Instead of the California veto, this number is the equivalent of a California/Pennsylvania/Nevada veto. As a born Pittsburgher who enjoys visiting Tahoe from my home in San Francisco, this veto coalition has its appeal as well. But again as an American, it’s incredible that such a small portion of the country holds such sway in the upper house of Congress. In this instance though, there’s no arcane rule like the filibuster to blame it on. The problem appears to be that the Senate itself is fundamentally unequal.
Which leads to a question I’ll take up in my next post: exactly how unrepresentative is the Senate and why?
Sources and Further Reading
If you’re interested in my sources and methods, feel free to download my analysis here.
Mentioning Pennsylvania and Nevada along with the phrase ‘arcane rule’ brings to mind the electoral college. That’s a whole other bag of cats, worth its own write-up. Every four years, the presidential election reminds those of us in the solid blue and solid red states that our dollars and dials seem to have more impact than our votes. Though similar in feeling to an unrepresentative Congress, this issue isn’t ingrained in our government’s structure. Every state could be purple for all the Constitution cares. The only systemic point of friction is in the primary process. For example, why does Iowa get to begin nominating presidential candidates?
That decision is internal to the parties however and, as the Framers didn’t anticipate political parties, they remain (mostly) de-jure external to government while de-facto integral. To learn about the primary process and historical changes, read Elaine Kamarck’s truly excellent book Primary Politics.
Here’s is the Slate Political Gabfest discussing the ‘Nuclear Option’ — also my source for the Emily Bazelon quote above: