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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.

  • Mimi Murray Digby Marziani
Published: 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.