Barack Obama was a member of the Senate's Democratic minority when Republicans tried to eliminate the filibuster against judicial nominees in 2005. And he wasn't happy about it.
"If the right of free and open debate is taken away from the minority party, and the millions of Americans who asked us to be their voice, I fear that the already partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything," he said. "That doesn't serve anyone's best interests, and it certainly isn't what the patriots who founded this democracy had in mind."
Ten years later, from the vantage point of the White House, Obama's take on the filibuster has changed sharply. In an exclusive Vox interview, I asked him what America needed to do to remain governable, given the deep divide between Democrats and Republicans. His answer turned quickly to the filibuster, and it's worth reading in full:
Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate. Because I think that does, in an era in which the parties are more polarized, it almost ensures greater gridlock and less clarity in terms of the positions of the parties. There's nothing in the Constitution that requires it. The framers were pretty good about designing a House, a Senate, two years versus six-year terms, every state getting two senators. There were a whole bunch of things in there to assure that a majority didn't just run rampant.
The filibuster in this modern age probably just torques it too far in the direction of a majority party not being able to govern effectively and move forward its platform. And I think that's an area where we can make some improvement.
But it's not just politicians' attitudes towards the filibuster that change. The filibuster itself is always changing — and usually in one direction.
The arc of history is long, but it bends against the filibuster
As Obama says, the filibuster isn't mentioned in the Constitution. Indeed, it wasn't envisioned by the founders at all. It was, as best as historians can figure, a mistake: it arose when the Senate deleted a seemingly redundant passage from its rulebook, and it took decades for anyone to realize that it was now impossible to force a senator to stop talking.
Since the filibuster's creation, the rule has been changed again and again. A filibuster was initially unstoppable — there was no way for the majority to override it. Then, in 1917, the Senate created "cloture votes", which made it possible for a two-thirds majority to kill a filibuster. In 1975, they lowered it to three-fifths.
In 2013, Senate Democrats did much the same thing their Republican counterparts had contemplated in 2005: they used a simple majority to change the underlying filibuster rule so it no longer affected non-Supreme-Court nominations. The result was not some kind of nuclear war in the US Senate. Life just continued on as usual, but it became much easier for Obama to get his nominees confirmed.
Senate Republicans protested the 2013 rule change bitterly, of course, but since retaking the chamber, they haven't moved to restore the filibuster. Indeed, two members of the Senate Republican leadership — Lamar Alexander and Mike Lee — have proposed lifting it against Supreme Court nominees, as well.
The filibuster, in other words, is on trend towards elimination. And its death becomes likelier as its use becomes more common. It's a victim of its own success.
Too much "torque" in a polarized age
What's really changed in America isn't the filibuster. It's the political parties that are using it.
For most of the 20th century, America's political parties weren't particularly distinct. There were conservatives in the Democratic Party and liberals in the Republican Party. That made it hard for the parties to act like parties — what Strom Thurmond wanted to filibuster, Hubert Humphrey wanted to pass.
And so the filibuster, in that age, was an extraordinary tactic mostly used by individual senators and small coalitions on issues of intense passion. The most organized and consistent use of the tool was by southern racists trying to preserve Jim Crow. And its use was rare. From 1940 to 1960, there were only 10 votes in which the majority tried to end a filibuster.
It's only later that the filibuster became an ordinary tool used by organized parties. And that's because the parties became distinct. There are no liberals in today's Republican Party and no conservatives in today's Democratic Party. The relative ideological unity of the two sides permits them to wage war in an organized, unified fashion. And use of the filibuster particularly picked up after Obama's election. In Obama's first six years, there were more than 380 votes to break filibusters. (Cloture votes, it should be said, are not a perfect measure of the number of filibusters, but since filibusters aren't recorded, they're the best measure we have.)
This is the problem with the filibuster: it is a poor fit for an era with highly polarized parties. It's one thing to have a rule that allows individual senators or small groups of senators to stop the Senate and force more debate over issues of extraordinary importance. But with polarized parties engaged in organized procedural warfare, the filibuster becomes something else entirely: a way not for minorities to be heard, but for majorities to be stymied. It becomes, as Obama said, routine, when for most of American history it was extraordinary.
Today's filibuster rarely has anything to do with debate at all: no one stands on the floor of the Senate and talks till they drop. Filibusters are pure procedure, a way to move the Senate from majority rules to supermajority rules. That's the key to understanding the filibuster debate: American politics changed and that changed the role the filibuster plays in the Senate.
The fourth veto point
As Gregory Koger, the author of "Filibustering: A Political History of Obstruction in the House and Senate," told me, "we have added a new veto point in American politics. It used to be the House, the Senate, and the President, and now it’s the House, the President, the Senate majority, and the Senate minority. Now you need to get past four veto points to pass legislation. That’s a huge change of constitutional priorities. But it’s been done, almost unintentionally, through procedural strategies of party leaders."
In 2005, Obama was one of the minority senators happy to have another veto point against the Bush administration. But in 2015, he's the President of the United States. He's the one getting torqued.
This is why, sooner or later, the filibuster is going to die. It's built on an inherently unstable foundation: it's a rule that forces a 60-vote supermajority on everything but itself; the rule underlying the filibuster can be deleted or amended with 51 votes. That means even as the filibuster exists to stymie the majority, it only endures at the pleasure of the majority.
Of course, every senator in the majority knows they may one day find themselves in the minority. And so they have reason to keep the filibuster around. But the more the minority uses it, the more pressure the majority feels to change it. At the same time, since it's there, the minority has every incentive to overuse it, particularly when the stakes are high — how can they tell their supporters they didn't do everything in their power to protect the Supreme Court or stop Obamacare or the gutting of environmental regulations?
That is to say, the filibuster is likeliest to be overused when the majority is likeliest to be unwilling to accept its overuse. Obama's radicalization on the filibuster is structural, not personal — it happened to George W. Bush, too. And it's happening, crucially, in the Senate. When Mitch McConnell was in the majority, in 2005, he supported weakening it, and now that he's back in the majority, he looks to be keeping the Democrats' changes and two of his lieutenants have called for going even further.
Majority parties want to govern. They're elected to govern. And eventually, one or another of them will decide that the modern filibuster is just too much torque, and it needs to be done away with.