Despite the fact that Senate procedural tactics are almost never interesting to most Americans, one in particular has been getting a significant amount of media and public attention of late- the filibuster. This is, in large part, due to the growing perception that Republicans are abusing the tactic to derail the Democrat's political agenda. In response, several Senators have recently called for the reform or elimination of the procedural obstacle.
Members of both political parties are fond of accusing the opposing party of being the "obstructionist party" in what often turns into a "he did it first!" debate. While it isn't particularly useful, in general, to wander into that type of debate (but if you are interested, our numbers show Republicans are more to blame), a historical review of the filibuster's use is helpful in at least one regard: it shows just how abused the procedural tactic has recently become. Many, such as myself, have argued that the filibuster can serve a valuable purpose. That said, the evidence suggests the filibuster is being used with a profligacy never before seen at a time when the Senate's action on key legislation is perhaps needed the most.
I haven't yet discovered an authoritative source listing the number of times the filibuster has been used by the minority party in any given Congress. The closest I have found is a table (published by the Senate itself) listing the number of motions filed for cloture for each Congress since 1919 (the 66th Congress). While useful, there isn't a perfect correlation between the use of the filibuster and the number of motions filed for cloture. Often, a majority leader may be aware that he does not have sufficient votes to invoke cloture, and a motion may never be filed. Other times, a majority leader may suspect a minority party Senator will filibuster a bill, motion or amendment and preemptively make a motion for cloture. Furthermore, the filibuster is just one of many obstructionist weapons in a Senator's arsenal. Others, such as the hold (which often precedes a filibuster), can be equally devastating (and are often anonymous). Consequently, the information below won't be a perfect analysis of the level of obstructionism of each Congress' minority party, but it does give at least a rough outline.
The table below shows the party controlling the Senate for each Congress since 1991 (Clinton's first year in office), the number of cloture motions filed during that Congress, and the average approval percentage for that Congress (according to Gallup polls taken during the relevant period):
|Year||Party Controlling Senate||Number of Cloture Motions Filed||Net Change in Cloture Motions Filed From Prior Congress||Average Approval Rating of Congress|
*There were 50 Democrats and 50 Republicans until May 24, 2001 when Sen. Jeffords (VT) announced he would become an independent and caucus with the Democrats, giving Democrats a one-seat advantage.
**This figure assumes the 111th Congress will file 75 cloture motions in 2010 (the same number filed in 2009) for a total of 150 cloture motions.
Since the 101st Congress (1991-1992), Democrats and Republicans have each controlled the Senate five times (if you include the 107th Congress in the Democratic column after Jeffords' switch). When Democrats were the minority party (i.e., the filibustering party), there were an average of 70.4 cloture motions filed by the Republican majority. When Republicans were the minority party (i.e., the filibustering party), there were an average of 100 cloture motions filed by the Democratic majority (assuming 150 total motions will be filed for the 111th Congress). If you remove the 111th Congress from the calculation (because it isn't yet finished), the average cloture motions filed by the Democratic majority for the remaining four Congresses with a Republican filibustering minority would be 87.5. Those numbers suggest (inconclusively) that Republicans have tended to use the filibuster more than Democrats since Clinton's first year in office with most of the difference being due to Republican filibusters during the 110th and 111th Congress.
Additionally, on average, Congresses with a Republican minority (i.e., the filibustering party) have seen an average increase of 25.2 cloture motions filed by the Democratic majority over the number of cloture motions filed by the immediately preceding majority party. Congresses with a Democratic minority (i.e., the filibustering party) have seen an average decrease of 2.6 cloture motions filed by the Republican majority over the number of cloture motions filed by the immediately preceding majority party. If we assume the 111th Congress will not file another cloture motion in 2010 (which would be inconceivable), those Congresses with a Republican minority (i.e., the filibustering minority) would still see an average increase of 10 cloture motions filed by the Democratic majority over the number of cloture motions filed by the immediately preceding majority party. This suggests the Republican party has tended to increase the use of the filibuster over prior minority party uses while the Democratic party has tended to decrease its use over prior minority party uses (at least since 1991). As mentioned above, however, this is only a partial picture of party obstructionism during any particular Congress.
The inverse correlation between Congressional approval ratings and the net increase in the number of cloture motions filed over the prior Congress is also not perfect (as expected- there are many factors affecting Congressional approval ratings), but it is interesting at least to note that the five Congresses which increased their cloture motion filings the most over the prior Congress (indicating an increase in the use of the filibuster over the prior Congress) are the same five which have had the lowest average approval rating since 1991. This isn't particularly surprising, as the filibuster slows the progress of the Senate and suggests a higher level of partisanship (neither of which are particularly popular results).
Perhaps what stands out the most in the table above is the dramatic increase in the filing of cloture motions (indicating a rise in the use of the filibuster) from and after the 110th Congress. Cloture motions increased by 71 from the 109th Congress to the 110th and appear on pace to increase by an additional 11 for the 111th Congress to an all-time high of 150 motions filed. This begs the question: what next?
The current trends of filibuster use are not sustainable, particularly when combined with other non-formal procedural obstacles (like Senator Shelby's blanket hold on all Obama nominees, for example). It is easy to believe that during a major crisis, both parties could unite on a common solution, but recent history seems to disprove that theory. The nation is facing its most troubled economic fortunes since the Great Depression and obstructionism is clearly increasing rather than decreasing. The system has created a perverse incentive for the minority party. When Americans are most desperate for government assistance, the minority party is able to obstruct passage of most legislation while simultaneously convincing the public that the majority party just can't get the job done (so the public should vote the bums out). But what's good for the goose is good for the gander. Why should we expect that the majority party, once it loses control of the Senate and becomes the new minority party, will cooperate with the new majority party? Aren't they equally incentivized to obstruct as a mechanism to regain control?
The system cannot long function in this cycle. The filibuster must be revised (see my thoughts on how to revise it here). That won't fix all of our problems, but it is a step in the right direction.
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