Segment from Stuck

A Cloture’s Worth a Thousand Words

The hosts consult former senator Fred Harris and political historian Greg Koger for an explanation of how things got so obstructionist in the Senate.

00:00:00 / 00:00:00
View Transcript

**Note: this transcript come from the original broadcast of the show. There may be small differences from the stories you hear.**

PETER: We’re back with BackStory. I’m Peter Onuf.

BRIAN: I’m Brian Balogh.

ED: And I’m Ed Ayers. Today on the show, we’re asking what history has to tell us about the gridlock that we see in Washington today.

BRIAN: In 1957, South Carolina Senator Strom Thurmond stood to speak in the Senate chamber. And with the exception of one bathroom break, he didn’t surrender the floor for just over 24 hours. His aim was to hold up voting on a bill that would protect the voting rights of African Americans.

ED: It is to this day still the longest filibuster in Senate history. And while it was ultimately unsuccessful, that filibuster reminds us that there was a period of time in the 1940s and 1950s when Southern lawmakers would go to great lengths, 24 hours, to block legislation they couldn’t defeat through a simple vote up or down.

BRIAN: But in spite of their use to block civil rights bills, when it came to everything else, actually, filibusters were pretty rare.

FRED HARRIS: As a matter of fact, a lot of people thought that the filibuster was going to largely disappear after the passage of the Voting Rights Act of 1964 and the Civil Rights Act of 1965. Instead, the use of the filibuster greatly mushroomed.

ED: This is Fred Harris. From 1964 to 1973, he represented Oklahoma in the United States Senate. And when he says mushroom, he isn’t kidding. I have a chart here, guys, that tracks the use of filibusters over time. And you can clearly see– maybe out there in radio land if you’ll close your eyes– that in 1964, the very year that Harris came to the Senate, the number of filibusters began a steady climb upward, a climb, that with few exceptions, has continued until today.

BRIAN: So what happened? Why did things turn out so differently than people had expected? Well, the first answer has to do with the media because it was at this very time, the late 1950s and ’60s, that TV was taking off.

And with TV coverage, the public learned much more about what was going on on the Senate floor than it ever had before. Voters began to expect more transparency in government. It was a shift that young senator Harris, for one, was happy to get behind.

FRED HARRIS: I went on the Senate Finance Committee’s [INAUDIBLE], went to the Senate. And, there, the first motion I made was that we open up our mark up sessions, where decisions are made, to the public. They were always closed. And my motion died for want of a second.

The chairman of the committee, Russell Long said, well, the issues that we handle, which of course included tax and Medicare and so forth, they’re so complicated that if we debated them out in the public, it would just confuse the public. My answer was, well, when we take these matters up in the full Senate then we ought to go into closed session. That didn’t get anywhere. Later, the Senate in the late ’70s changed and so did the House.

BRIAN: But let me ask you– I remember that you were a strong advocate for transparency. But do you think that inadvertently you have contributed to the kind of stalemate that we face today? Too many people know too many things and can block things in too many ways.

FRED HARRIS: Well, that’s certainly part of it. I think the transparency and better informed public is a good development. But it certainly brought about a lot less freedom of movement. When a few people, quite privately, can make a deal, it’s a lot easier to get action. But often it was not action that was best for the public.

BRIAN: No, I understand that. I’m not talking about ends. I’m just talking about the process itself.

FRED HARRIS: Sure. The old traditions, those norms where you didn’t use a filibuster except in extreme kind of situations and you didn’t obstruct, that all began to change. And a lot of it had to do with the fact that the public was much more aware and interest groups were much more aware about what was going on.

BRIAN: TV wasn’t the only thing changing the wheeling and dealing culture of old school Washington. There were also increased demands on Senators’s time. Over the first half of the 20th century, government had grown a lot bigger and senators were expected to do more stuff than they had ever before. And since these new things called airplanes made it a lot easier to travel, Senators were expected to make at least a few trips home during the legislative sessions. A few trips quickly turned into weekly trips.

PETER: The upshot was that senators couldn’t afford to sit around while people like Strom Thurmond read from their grandmother’s biscuit recipe on the Senate floor. And so in the early ’60s they revived an arcane rule known as cloture. It allowed for debate on a bill to be cut off if a 2/3 majority voted for that.

BRIAN: Once again, you’d think this would reduce the number of filibusters since there was now a mechanism to nip those filibusters in the bud. But remember that chart that Ed referred to? Yep. Just the opposite happened. Filibusters continued to increase. Why? I put the question to political scientist Gregory Koger.

GREGORY KOGER: Let me start with an analogy. I mean, imagine, as a nerd, that I’m back in grade school. And everyone knows the game is you can take Koger’s milk money if you beat him up.

And this happens from time to time. Somebody says, Koger, give me your milk money. I say no. And then there’s a fight. And then I loose my milk money.

BRIAN: So little Koger, to follow this metaphor, is a Senator with the votes to get a bill passed. The fight over milk money, it’s the filibuster.

GREGORY KOGER: But in order to do that, you have to invest some time in beating me up. And I might get a few blows in. And so you get hurt and then you walk away with milk money.

And let’s say I realized, after a year of this, hey, I’m winning about half my fights. So why don’t I just tell everybody from now on, if you want my milk money, you just have to threaten to beat me up. And I’m going to roll the dice.

And if it comes up four or five or six, you get my milk money. One, two, or three, I keep it. And so I won’t waste as much time getting beat up every day and I won’t get punched and you won’t get punched. Well, it’s a win-win.

BRIAN: The rolling of the dice? Well, that’s a vote for cloture, for cutting off debate. And get ready, because here comes the unintended consequence.

GREGORY KOGER: Everybody else in my school realizes they don’t actually have to be big enough to beat me up. And so then every– so it used to be, like, one or two guys a day. And now everybody’s like, well, I might as well just roll the dice and see if I can take Koger’s money.

BRIAN: The cost of filibustering for both sides used to be significant. But now, thanks to the cloture rule, anybody could launch a filibuster or more importantly, just threaten to do so. And he could safely assume he’d be home in time for dinner, perhaps with someone else’s lunch money in his pocket. Suddenly, filibustering becomes a much more attractive way to flex your senatorial muscle.

GREGORY KOGER: Once you take those costs out of the equation, the costs of expending time and the physical exertion and standing in front of the public and taking responsibility for the obstruction that you are wreaking upon the system, once you take that out of the equation then any Senator says, well, I am passionate about things. I can send a letter to my party leaders saying that I will filibuster a bill or nomination. And now there’s no reason not to.

BRIAN: All right, so easy solution. Just lower the number of a super majority for a cloture from the current 60 to, let’s say, pick a number, 55, just as they lowered it from 2/3 in 1975 to 60. Problem solved, right?

GREGORY KOGER: No. No. Here’s the thing. Even if you lower the threshold down to, say, 55, 52, the rest of the cloture rule matters because it builds in a number of delays. You have to get senators to sign your petition then you file then you wait two days then you vote.

Then there’s a period of time after the vote when you debate. And for any given bill, this can actually happen multiple times, on the motion to bring it up, on the bill itself, on a conference report. And if you lower the threshold, let’s say you lowered it to 51 so the Democrats definitely have enough votes, the Republicans can still invoke this cloture process on everything. And I mean every single bill to change the name of a Post Office in Peoria. And in doing so, they can still delay the Senate so much that they’ll have a lot of bargaining leverage with the majority party.

BRIAN: Right. It’s all about delay. So tell me, Greg, what could be done to make things better in terms of the ability of one senator or a small group of senators to block key legislation.

GREGORY KOGER: In the abstract, I just think there ought to be a greater incentive to political parties and politicians as individuals to get things done. A lot of our system focuses on their positions, what they fought for, or what they tried to do. And I think collectively we should set up an incentive structure so that they actually are rewarded for accomplishing things and punished for doing nothing.

BRIAN: So using the lunch money metaphor, what would that look like?

GREGORY KOGER: That anybody in my classroom who doesn’t try to take my milk money then gets rewarded by the school. They get better grades or they get an allowance from the school for being good kids.

BRIAN: Get out of Phys Ed.

GREGORY KOGER: Sure. Get out of PE if you don’t like it.

BRIAN: Gregory Koger is a political science professor at the University of Miami.