Political Science 345: The Legislative Process Class 15: Obstructionis m

1. Political Science 345:The Legislative ProcessClass 15: Obstructionism Professor Jon Rogowski

2. Pivotal Politics reprised • Legislator locations: 0, 0.10, 0.20, 0.30, 0.40, 0.50, 0.60, 0.70, 0.80, 0.90, 1; Democratic president • Legislator locations: 0, 0.10, 0.20, 0.30, 0.40, 0.50, 0.60, 0.70, 0.80, 0.90, 1; Republican president • Legislator locations: 0, 0.05, 0.10, 0.15, 0.20, 0.25, 0.80, 0.85, 0.90, 0.95, 1; Democratic president • Legislator locations: 0.25, 0.30, 0.35, 0.40, 0.45, 0.50, 0.55, 0.60, 0.65, 0.70, 0.75; Democratic president

3. Implications • How does the distribution of preferences within a legislature affect the capacity of that body to change policy? • To what extent does the president’s partisanship affect the capacity for policy change? • New presidents and their “honeymoon” • Implications of filibuster reform

4. Historical accident? • Filibuster not found in the Constitution, nor was it endorsed by the Founding Fathers • Contrary to the view of the slow-moving Senate as a conscious creation • Original House and Senate rulebooks in 1789 were nearly identical • Provided for the “previous question” motion which allowed a simple majority to cut off debate

5. A brief history of the filibuster • House kept that rule on the books • Senate did not • What happened to it? • VP Aaron Burr presided over the Senate from 1801-1805. Said that the Senate had many redundant rules, and singles out the previous question rule. So, the Senate gets rid of it. But no filibusters happen immediately.

6. A brief history of the filibuster • It was several decades before the Senate experienced its first filibuster • First real filibuster in 1837 (?) • In 1841 a Whig majority (led by Henry Clay) tried to pass a bank bill that Dems opposed. When Dems filibustered, Clay threatened to change Senate rules to allow the majority to end debate.

7. A brief history of filibusters • Unclear whether we would expect it to make a huge difference • The previous question motion had only been used 10 times between 1789 and 1806 • Only 16 filibusters from 1840-1900 • 17 more from 1900-1917

8. Why so few? • Senate generally operated by majority rule; norm of bringing bills up for votes • Not a whole lot of work to do in the pre-Civil War years, so the majority could easily wait out the opposition • Voting coalitions were not very polarized and often bipartisan

9. A brief history of the filibuster • After the Civil War, legislative agenda became increasingly busy and party polarization began to grow. • By 1880s, almost every Congress featured obstructionism on civil rights, election laws, nominations, etc etc. • Leaders tried to ban the filibuster and reinstate the previous question rule; however, the opposition would filibuster and put the majority’s priorities at ris.

10. Rule XXII • In early 1917, President Wilson wanted to arm US merchant ships after the sinking of the Lusitania. Republican Senators successfully filibustered. • Wilson refused to call “a special session of congress to deal with the war emergency” until the Senate rules were changed to provide a method to end a filibuster.

11. Rule XXII • A pivotal issue, the president using the bully pulpit, and an attentive public created the right conditions for reform. • The Senate passed Rule 22 because Wilson and the Democrats framed the rule as a matter of national security. • Required 2/3 votes to end a filibuster

12. Why require a supermajority? • A bipartisan committee negotiated the rule • Five of the six Dems wanted a simple majority rule; one Rep wanted a supermajority rule; and one Rep wanted no rule • In exchange for a 2/3 agreement, opponents promised not to block/weaken the proposal, and supporters promised to drop their own proposal for simple majority cloture. Rule change passed 76-3.

13. Effect of Rule XXII • From 1917 to 1927, cloture voted on ten times and adopted only four times • From 1931 to 1964, “clotures was seldom sought and only twice obtained”

14. Explosion of filibusters

15. Reforming the filibuster? • Many attempts since 1949 • Whether/how the rule can be changed has been met with many of the same concerns • Senate attempted to reduce cloture requirement to simple majority in 1957 but this failed • Compromise in 1959: require 2/3 of a quorum (not entire Senate) but declared that rules applied across congresses • Another compromise agreement in 1975; reduced cloture require to 3/5 of the Senate, but required a 2/3 vote of the Senate to amend the rules

16. Three practical barriers to reform • Rule V: Rules of the Senate are continuing and amendable only “as provided in these rules” – cloture of a motion to amend the rules requires 2/3 of the Senate • Rule VIII: debate on a motion to amend the rules cannot begin without unanimous consent or adoption of a motion to process, which itself can be filibustered and requires 2/3 for cloture • Rule XXII: Requires that substantive debate on a motion to amend the rules cannot end with another 2/3 vote for cloture

17. Who supports reform? • We can draw from earlier accounts of institutional change (Binder 1996; Schickler 2000) • Koger (2006) finds that both were important in the early cloture years • Partisans supported a majority cloture requirement when they were in the majority and opposed it when they were in the minority • Within each party, moderates and extremists were more likely to oppose a majority cloture requirement for fears of reducing their influence

18. How did this affect lawmaking? • The location (and existence) of the filibuster pivot in the pivotal politics model is determined by the requirement in Rule XXII • With no cloture requirement, we would expects bill to pass by overwhelming majorities, understanding that just a single member could hold up legislation

19. The effects of cloture • After the cloture rule was put into place, we would still expect bills to be passed only by large majorities (specifically, 67%)

20. An alternative explanation • Main effect was to reduce uncertainty about whether a filibuster would be successful late in a Congress • Legislation considered near the end of the Congress faced uncertainty about how large the enacting coalition needed to be • Smaller majorities could work earlier in a Congress, but there simply wasn’t time to form those successful coalitions when Congress is about to adjourn • Thus, the cloture requirement increased the necessary winning coalition size earlier in a Congress but decreased uncertainty about how large a majority would need to be for legislation considered at the end of a Congress

21. Other ways of thinking about it • Location of the filibuster pivot has implications for the incidence of gridlock • Could the cloture rule be reformed again? What might it take? • Supermajoritarian requirements, elections and representation