The State of the Union:
President Obama's challenges to Democrats and Republicans

28 Jan 2010 in People & Institutions

In his State of the Union address last night, President Obama challenged Democrats to take advantage of their substantial congressional majorities and challenged Republicans not to obstruct them:

To Democrats, I would remind you that we still have the largest majority in decades, and the people expect us to solve problems, not run for the hills. And if the Republican leadership is going to insist that 60 votes in the Senate are required to do any business at all in this town -- a supermajority -- then the responsibility to govern is now yours as well. (Applause.) Just saying no to everything may be good short-term politics, but it's not leadership. We were sent here to serve our citizens, not our ambitions. So let's show the American people that we can do it together.

Here are some intriguing facts about filibuster-proof congressional majorities and the legislative productivity of the 111th Congress.

THE CHALLENGE TO REPUBLICANS

President Obama's challenge to Republicans is an odd one. The minority party has no ability to control legislation in the House, and if it has a supraminority of 40 or less in the Senate, limited ability to obstruct the Senate. President Harry Truman famously campaigned in 1948 against the "do nothing" 80th Congress, which was controlled by Republicans for the first time since 1930. In the 1946 election, Republicans captured 51 of 96 Senate seats (53%) and 246 of 435 House seats (54%). This was a huge change; prior to 1946, Republicans held just 38 Senate seats and 191 House seats. This Republican majority was its first since 1929 (56 [58%] Senate seats; 270 [62%] House seats).

Republican opposition has not been a factor in the House, where it has little or no influence over either the content of legislation or the floor schedule. In the Senate, 68 cloture motions were filed in 2009 and three so far in 2010. Eighteen of these motions have led to close votes (defined as a five vote or less margin of victory, or a loss). However, a total of 17 cloture motions have concerned actions best described as noncontroversial (defined as garnering 70 or more votes in favor of invocation). Cloture has become a routinized practice that no longer is clearly associated with controversy. (More on cloture below.) In any case, empirical evidence of obstruction, beyond what is normal in the Senate, is hard to come by.

THE CHALLENGE TO DEMOCRATS

The current Democratic majority is substantial. Until the special election in Massachusetts last week, Democrats held 60% of the seats in the Senate. Under rules enacted in 1975, it takes a 3/5ths (60%) majority to invoke cloture, a procedure that compels a vote to end debate. Between 1917 and 1975, a two-thirds majority was required. As the Senate historian notes, prior to 1917 there was no procedure to terminate debate:

In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Kentucky Senator Henry Clay, he threatened to change Senate rules to allow the majority to close debate. Missouri Senator Thomas Hart Benton rebuked Clay for trying to stifle the Senate's right to unlimited debate.

Contrary to conventional wisdom, the cloture rule to end filibusters was enacted as a procedural reform, not as a way to obstruct action:

Three quarters of a century later, in 1917, senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture." The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain... In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current one hundred senators.

How often has one party held a filibuster-proof majority that, in theory, should enable it to enact laws over the determined opposition of the minority party? There have been seven such congresses, every one enjoyed by Democrats.

It is useful to examine these dates. The first spans an eight year period from the middle of the New Deal (1935) to the endgame of World War II (1943). The second occurred during the aftermath of Watergate (1975-1979). The third began in 2009 with the seating of Al Franken (D-MN) and ended last week with the election of Scott Brown (R-MA). The first two were periods of rapid expansion of the size, scope, and power of the federal government. The third was an attempt to replicate the first.

The last three filibuster-proof majority have been razor-thin. The Senate leadership could not afford to lose a single member to sustain it. This requires making major concessions to marginal members of the coalition. This has been amply illustrated in the recent dealmaking on health care legislation. During the New Deal/WW2 period, the Democratic supermajority was so large that marginal members of the Democratic majority had little leverage.

It is possible that the lure of supermajority status contains within it the seeds of defeat. It may lead the majority party to overestimate its ability to enact what political scientist Charles Lindblom called non-incremental legislation. (One of Lindblom's most famous works was called "The Science of Muddling Through" [1959], in which he made the case that incrementalism is the norm for American public policy and that radical or transformative action the rare exception.)

To the extent that the current majority (and President Obama) have visions of enacting radical or transformative legislation, reprising the New Deal, their Senate majority is nowhere near as great as what Franklin Roosevelt had, even though the threshold for invoking cloture was higher back then. Thus, from the outset, the likelihood of success this time has been low as long as the opposition remained determined.

THE INCREASING ROLE OF FILIBUSTER AND CLOTURE

The Senate historian also reports that before the 92nd Congress (1971-1972), there were no more than seven cloture motions. The average over 26 congresses was (49/26 =) 2.1 per session. To sustain a filibuster, a Senator had to speak continuously and never relinquish the floor -- a very demanding task. (The longest filibuster was performed by Sen. Strom Thurmond [D-SC] on August 28-29, 1957. It lasted 24 hours and 18 minutes [See Richard Beth, 2003; footnote 2.)

Since 1973, the average number of cloture motions has risen to (1,134/20 =) 57 per session. What's changed? Senators no longer have to execute a filibuster; they need only threaten to do so. This reduction in the "price" of the filibuster is responsible for the increased market supply.

The gentlemen's cloture was likely motivated by an intuitively reasonable belief that filibusters, because they are so time consuming, impeded the Senate from conducting the public's business. This makes great sense as a managerial reform, provided that there are no adaptive responses. But there have been adaptive responses; the minority can effectively kill legislation by merely threatening to filibuster, in which case the Senate moves on to other business. These adaptive responses likely would go away if the Senate restored the old price of the filibuster, compelling Senators to speak without end. (With C-SPAN, the price likely would be much higher than it used to be.)

CONGRESSIONAL PRODUCTIVITY

The current Congress has been relatively unproductive, measured in terms of the number of public laws enacted. At its current pace, the 111th Congress will enact just 252 public laws, a number far lower than any recent Congress. Nonetheless, it is hard to find evidence showing that this low productivity is attributable to Senate Republicans. The better explanation is that the President and Congress have sought to enact radical or transformative legislation, which the American political system is designed to resist.

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