Filibusted! A Conversation With Greg Koger

Greg Koger, Author,Filibustering: A Political History of Obstruction in the House and Senate, talks to Just Books' Mimi Marziani about the filibuster — and its use and misssue.

August 11, 2010

Greg Koger, the author of Filibustering: A Political History of Obstruction in the House and Senate, talks to Just Books' Mimi Marziani about the filibuster — and its use and misssue.

Mimi Marziani: In recent years, use of the filibuster has exploded – and sparked a vigorous public debate. How does your book contribute to the discussion on the filibuster?

Greg Koger: A major contribution is my study of both chambers of Congress during the 19th century. The House actually had much more obstruction than the Senate during the 19th century. It goes through the cycle of growing filibustering, and then by the end of the 19th century, the House is eventually paralyzed by filibustering — the way many people complain about the Senate now. Since a lot of rhetoric about filibustering is based on loose historical claims, its aim is to nail down the history of filibustering.

And I offer a description of the emergence of the modern Senate. Neither of the previous books on the topic explains how we get from the Senate of the 1900s to the Senate of 2010. So, that is one of the main academic contributions — telling the story of the Senate transition.

We’re at a time in the Senate in which people respond to the number of filibusters; historically this has not had any effect on the filibusters and may have facilitated filibusters by making them easier.

MM: As you know, the term ‘filibuster’ is broad and refers to almost any tactic strategically employed to obstruct legislative action. As a result, its hard to measure filibusters in an objective way. How did you choose to measure filibusters and why?

GK: For the historic Senate, I didn’t have very high-quality secondary sources, so I looked for first-hand evidence that filibustering was going on. And on top of that, I had a strong idea, based that most of the filibustering that was going on included tactics that were easily measureable in the Congressional Roll Call record. That is, calling for votes on procedural questions just to chew up time. The disappearing quorum is another useful, measurable, tactic. It is when legislators refuse to vote as a strategy to break a quorum, to prove that there aren’t enough people there to make a decision. Then that brings the chamber to a halt. These are things that I looked for in the Roll Call record, in the House and Senate. That was my strategy for the 19th Century.

In the 20th Century, filibustering in the House had been clamped down. And Senators became more inclined to use speaking, rather than dilatory methods and disappearing quorum, as their method of choice.

I literally went through The New York Times database and looked for articles that had the words ‘Senate’ and ‘filibuster’ in them. I supplemented that by going through the Times magazine online database and some Congressional Quarterly publications, as well, looking for the word ‘filibuster’. I was using over 7,000 articles with the word ‘filibuster’ in it from the 20th- and 21st centuries.

MM: NYU Law professor, Rick Pildes, says today’s homogenous, hyper-polarized parties can’t be compared to the parties that existed before the 1964 Civil Rights Act. Pildes believes that today’s polarization is much more extreme and he believes that it is directly linked to the increase in filibusters and other types of obstruction. How do you respond to that?

GK: Polarization was high at the beginning of the 20th century. This is not just my impression. I am relying on conventional measurements of partisanship used in political science research for years, particularly party unity in Congress – that is, the extent to which party members in Congress vote together.

Keith Poole and Howard Rosenthal created a new measure that’s gotten a lot of recent attention. Their polarization scores are based on complex algorithms by which they attempt to determine the ideology of the members of Congress. Sure enough, if you look at the last forty years, you see a growing polarization in Congress. But if you go back historically, you see that at the turn of the century—the end of the 19th century, early of the 20th century—was also a peak time of polarization. These are conventional measures. And they coincide with what a lot of historians and political scientists who study party history know about parties at the end of the 19th century, eginning of the 20th. Namely that they dominated the function of Congress, that a lot of the fighting and conflicts that go on within Congress between party leaders and the mass public, parties were highly hyper-developed. Every person felt obliged to declare loyalty to one party or the other; they completely controlled nominations.

It is true that if you compare the parties of 1963 to the parties of 2010, things look a lot more polarized. Ultimately the question is: If I use data from the early 20th Century, what does that tell us about filibustering? And what it tells us is that there is no single link—no causal link—between partisanship per se and filibustering.

Meanwhile, if, for other reasons, there is an increase in filibustering over time—and I identify those other reasons—it makes sense that as the Senate becomes more polarized, that filibusters are more likely to fall between party lines rather than to pitch regions against each other. This is what we saw when the Southerners filibustered against the rest of the country on civil rights. Also, at that time you saw much more ideological filibusters where there would be a small group of Democrats or Republicans who are fighting together against the rest of the Chamber—you see fewer of those now-a-days. It is mostly about one party, usually a minority party, not liking what another party is doing. Those conflicts between parties are not new to Congress. What is a new development in the Senate, historically speaking, is that it is relatively easier for a minority party to exercise this opportunity to filibuster.

MM: When you have a minority party that acts in lock-step, the filibuster can become a more powerful weapon. It can be more powerful in a way that a minority veto could not have been when you had maybe more factions.

GK: Right. One thing that may have changed, in addition, is that during the ‘70s and ‘80s it was probably easier for the majority party to buy off, or bring in, some segment of the minority party, and then to filibuster. Polarization, perhaps, has more of an effect on the Senate because it is harder to get the votes to end the filibuster.

MM: In your view, the scarcity of floor time in today’s Senate is connected to filibustering. Could you explain that?

GK: Senators are more likely to filibuster if the costs of doing so are low—that’s a simple idea, right? So, start with the idea that Senators are more likely to filibuster if it is easy to do so. And so, as costs decrease, we will observe more filibustering.

So, the big change in costs is a change in tactics used by the majority of the Senate against the filibuster. It used to be that the tactic of choice was attrition—just wait it out, if someone wants to delay a bill, just sit down and watch them speak — which is sort of nicely illustrated in the movie Mr. Smith Goes to Washington. The one Senator with the small team will get exhausted and collapse, and the other team will win.

And so, in that old-style type battle, you would only see the minority winning if time was especially precious. Or, when there was a very large group of people working together to delay things. This is why Southerners were very effective. There were, say, 20 of them in a civil rights fight and they were very well organized and willing to stand and speak day after day.

Once Senators stopped waging these old-style attrition battles, they significantly decreased the costs of a filibuster. Somebody who is thinking of filibustering no longer has to say to him or herself, ‘do I really want to be on the Senate floor day after day?’; ‘do I really want to take a public stand against this bill which may be popular?’ Take that out of the equation and, you know, it seems a lot easier—lower cost—to filibuster.

MM: And you remove uncertainty, correct?

GK: Yes. In one sense, that uncertainty is reduced in that it is easier to count the votes than it is to count intensity. So if a Senator says, ‘I am going to filibuster against that bill,’ that’s one thing. That’s a unit that you can easily measure, you can count heads, and then have a good idea of whether the bill will pass or not. But if somebody says they are going to stand on the floor and speak against the bill, you don’t really know how intense they are until they actually do it. So, a lot of times when these old school fights play out, there is a lot of uncertainty at the outset about just how serious the other side is.

Now, I am not the only person to have gotten this far, to have said that there has been this tactical shift by Senate majorities, and that it’s easier to filibuster, and that’s why we have more filibusters. The next point is where the book ends up—trying to explain why this tactical shift occurred in the first place. And to go that extra step, you have to think about the value of time for Senators. To wage a war of attrition costs everybody time. Obviously the obstructionist has to be on the floor speaking. So, everybody that is fighting against that filibuster has to be in and around the Chamber. And so, in one of these old school fights—if you watched Mr. Smith Goes to Washington—Mr. Smith is filibustering, but then a majority of the Senate also has to be there all night while he filibusters because Mr. Smith has the ability, in the absence of a quorum, and then everybody sort of has to show up on the floor and say, ‘yes, we’re here,’ if it ever happens.

Well, that’s quite a burden for the people who are fighting the filibuster. And the more often that they occur, and the more valuable the other uses of their time, and the harder it is to actually wage one of these wars of attrition, and so the book gets into the increasing value of their time. So, while I don’t measure this directly — things that are going on in the 20th century include an increase in the Senate’s workload; the federal government is growing; you have wars to manage. And so, there are other things waiting to come up on the Senate floor. But also, essentially, they have more things they can do with their time. D.C. has become a more livable place. They could be going out and seeing a show. Or, they could stay in the Senate Chamber all night. They could be catching a plane and going back to their home state, visiting with their constituents. Or, they could be leaving the city altogether to speak to party activists for the campaign they hope to wage someday. So, they have other things to do with their time. Their options got a lot better, and the pressures of other topics waiting to come up on the Senate floor increases. It becomes less feasible for them to wage a war of attrition every time some Senator is unhappy with what is going on.

MM: Do you think there is any connection between the campaign finance rules that govern the Senate and the scarcity of floor time?

GK: Yes, I think so. In two ways. Firstly, a lot of a Senator’s time seems to be consumed by fundraising. That makes it harder for them to keep up with their legislative duties, much less wait out a filibuster on the Senate floor. Secondly, the fact that Senators must be responsive to potential donors makes it difficult to compromise when there is a filibuster happening on the Senate floor. This is part of a broader pattern in American politics. The activist and the donor play a large role in who gets nominated, and who gets money to wage a real campaign in American politics. As a result, it is harder to compromise.

MM: Do you think that campaign financing along the lines of public funding would, or could, lead to a decrease in filibusters?

GK: It is possible. If I were trying to make a case for public funding, I would think more broadly that the pressures of fundraising eat up more of the Senator’s time. It is not just the fact that they’re not waging out filibusters. We may imagine that they are going to community meetings, and learning about legislation, and building up votes. And all of the legislative work that we would like them to do competes for a Senator’s time with fundraising. I think there is a broader point to make, not just on filibustering, but on the pressures of a Senator’s time. I would be relieved if they didn’t have to fundraise so much.

MM: There are now a number of ideas for curbing obstruction. What do you think of Senator Tom Harkin’s proposal to decrease the number of votes needed to obtain cloture? And more generally, which ideas for reform do you think have the most hope of being effective?

GK: I am not at all optimistic that the Harkin reform would have a beneficial effect. The problem is that it is focused on changing the cloture threshold. If you want majority rule in the Senate, then let’s completely obliterate the right to filibuster and impose majority rule. If Senators are not willing to do that, then a threshold that gradually reduces the votes, three votes at a time, would probably have the opposite effect of what Senator Harkins intends — it would invite much more filibustering.

If I were a member of a minority party in the Senate and the Harkin proposal is adopted, I would respond by filibustering everything — every motion, every bill, every amendment. What you need to understand, is that even on the fourth cloture vote, the majority could out vote me. But by forcing them to cast four cloture votes on everything, I would redeem a great deal of bargaining leverage and get back to at least where I was before. It is the sort of idea that appeals to people who only care about one thing at a time: that one Supreme Court Judge; that one major bill. But when you think about how the rule would apply to a Senate who has to make hundreds of decisions over the course of two years, it would be very ineffective. Think of everything the Senate has to do, and then imagine if they have to go through four cloture votes to do it in this post-Harkin world.

There is this idea that filibustering can actually have a positive effect on promoting compromise, on limiting effects on party leaders, and driving bad legislation from a chamber from time-to-time. Rather than eliminating filibustering, I would promote a mechanism that would reverse the burden filibusters create. Right now, when there is a filibuster and then a cloture vote, in order for cloture to be provoked, 60 Senators have to vote for cloture. I would reverse this and require that 41 Senators have to vote against cloture. It is the same threshold, but it reverses the burden of participation.

MM: I wonder if that would change the accountability.

GK: Right. It changes the ethic. The idea is that if a bill or nomination makes it to the Senate floor, it deserves a vote. And then the question is, who is keeping us from having a vote?

But what I also like about it, is that in a world in which the time of a Senator is extremely valuable, it imposes some greater cost on people who are waging a filibuster. Imagine that the majority party starts to file its cloture motion on Thursday. That means that the vote will occur on Saturday. Let’s say they file their petition on Friday. That means you’d also have a vote on Sunday. And so, in order to block legislation, or nomination, the people who are opposed would actually have to come in on the weekends. They wouldn’t be home in their states; they wouldn’t be off having fun. They would have to be serious enough about their filibusters to give up on the other things that they could be doing with their time. That’s why I like it.

MM: Appropriations?

GK: Appropriations is one. So, Norm Ornstein at the American Enterprise Institute is advocating that there shall be no filibustering against appropriations bills. It’s a basic job of Congress to pass these appropriations bills. They’re getting gummed up. In a simple category, I would set up expedited procedures for executive nominations, and some sort of quick super-majority process for simple legislation. In the House, if I wanted to pass a bill to, say, name a post office, they have what is called ‘Extension of the Rules.’ So, I bring up a bill, talk for thirty minutes, and then there is a two-thirds vote to decide if it passes, or not. The Senate has traditionally passed a law that that type of legislation must be passed by unanimous consent, which then means that any one Senator that is feeling cranky that day can keep it from passing. So, to prevent one cranky person from jamming up the small bills, it would make sense to have something like the ‘extension of the rules’ process. Which is, bring the bill, do the vote, let it pass quickly.

MM: Theoretically, I think that that could impact the tradition of holds because that would basically make one Senator placing a hold responsible for proving that it was a viable threat for a larger-scale filibuster rather than just a threat of them objecting to unanimous consent.

GK: Well, more than that, it would be an assault on the practice of holds. A hold, in its most general form, is keeping legislation off the floor for a limited period of time—just a few days. And often there are sincere reasons for doing this; you want to actually read the bill, you want to prepare amendments. For Senators, they often want to be in on the discussions for what process will be used when the bill comes to the floor. It is all pretty legitimate. It becomes illegitimate when people complain when it is really a one person veto that becomes unanimous. In the later case when a person has just been vetoing a bill or nomination for an extended period of time, just sort of sitting in doldrums for a while, then it would be great to have some sort of process that would bring down the one person, or the ten people, that are objecting, to just get it done.

Lastly — and this is actually a standard suggestion going back to the Congressional Reform Committee of 1993-94 — if, like me, you think that filibusters can be good, and it makes sense that major legislations have to run that gauntlet, it doesn’t make sense why a bill should have to run the gauntlet multiple times. So, it would make sense, for example, to eliminate filibusters on the motion to proceed. That’s an agenda setting motion that sort of brings a bill to the floor. So, when financial reform was passed in the Senate, the Republicans were first filibustering against the motion to proceed. They were arguing that they didn’t like the bill. But if you don’t like the bill, that means bring it to the floor and offer amendments to it. It doesn’t mean that you should keep the bill off the floor in the first place. So, if you don’t like the bill, bring it to the floor. Either offer amendments or filibuster. At least let it get to the floor in the first place.

A second point is that it has gotten a lot harder for legislators to go to conference committees because if a Senate committee decides they want to go to conference committee on the bill, there are actually three motions that have to pass to do that; to disprove another Chamber, to request a conference, and then to appoint conferees. So those motions, of course, are subject to a filibuster. I would condense that, or actually even out the allowance to filibuster the motions to go to conference and start the negotiation process, and still allow Senators to filibuster the product of that Committee. But at least allow the negotiation to occur.

MM: Those reforms would ensure that the filibuster is actually doing what its defenders say it is supposed to do, which is to promote actual deliberation and debate. Whereas, if you’re filibustering a motion to proceed, you’re actually preventing the deliberation.

GK: That is correct. If these reforms actually got to a vote, it would be hard for Senators to sincerely oppose them – except out of raw interest for maintaining every opportunity to filibuster, if they’re in the minority.

One last thing on that point, Senator Merkley of Oregon has proposed that the Senators adopt reforms that are implemented in six years, since they don’t know where they will be in six years. And that way, they can think more about the broader implications, and less about their own strategic situation that they want right now, and for the next two years.

I would imagine, if the Senators actually did walk out from behind closed doors and say, ‘we’ve got these reforms and we want to implement them in six years,' that the next question will be: if they’re good in six years, why not make them active now? I think that would be a very tough question to answer.

Gregory Koger is an assistant professor of political science at the University of Miami and the author of Filibustering: A Political History of Obstruction in the House and Senate (Chicago Studies in American Politics), University of Chicago Press.

Mimi Marziani is a lawyer at the Brennan Center for Justice.