By Mark Mellman - 11/19/13 07:16 PM EST
Somehow, an accident of history has become enshrined as a principle of democratic governance.
As I’ve noted before, the filibuster is nowhere mentioned in the Constitution, nor was it contemplated by the framers — certainly not a filibuster of presidential appointees.
Rather, it emerged as the unintended consequence of a rule change.
Alexander Hamilton, writing in the Federalist Papers, defined the framers’ expectations: “[The senators] may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice.”
Ratify or reject. Not ignore, not filibuster.
While the filibuster has been used by both parties, the current crop of Senate Republicans has practiced filibuster abuse at unprecedented levels.
Rather than learning from last summer’s visit to the brink of nuclear winter, the GOP is once again preventing the president from putting in place the people he needs to run the Defense Department, the State Department, the Judiciary and other vital agencies.
The inability of the Senate to act on so many issues is one, but only one, cause of the plummeting respect Americans are expressing toward Congress, which has reached a record low.
When probed, however, voters say they blame the members personally, not the system. Public opinion on the filibuster itself appears malleable.
In the first poll on the subject, conducted by Gallup in 1937, 34 percent opposed filibustering FDR’s plan to expand the Supreme Court, while 31 percent favored it, with the rest uncertain. In 1947, 57 percent favored a simple majority for cloture over the two-thirds rule then in force.
As professors Steven Smith, James Gibson and Hong Min Park point out in a paper on the subject, that pattern continued through the 1950s and ’60s, when majorities supported reducing the threshold for cloture and the enactment of civil rights legislation that was the object of filibusters.
The year 2005 brought a somewhat different alignment, as voters favored retaining the filibuster. A deeper dive revealed 35 percent wanted the filibuster rules changed, while just 19 percent wanted to preserve the filibuster but did not want a vote on the judges that were then the subject of “extended debate.” Thirty-four percent wanted to retain the filibuster, but wanted to see a vote on the nominees. Thus, a third of the country preferred to keep the filibuster, but vitiate its intent and effect.
More recently, we appear to have witnessed another pendulum shift.
Identical questions repeated over time — the only way to be certain about change — are hard to find. However, a United Technologies/National Journal poll in November revealed a 7-point margin in favor of changing the filibuster rule, while a CBS/New York Times poll pegged the advantage of anti-filibuster forces at 6 points.
Moreover, a survey experiment conducted by professor David Doherty of Loyola University found that a senator who achieved a victory through filibuster was less highly regarded than one who did so as part of a simple majority.
Why the malleability? Attitudes toward filibusters stem from both an enduring value preference and a grant of political expediency to the side you consider “right.”
The philosophical divide arises between those who prioritize majority rule as against those who emphasize protecting minority rights. Here, too, the country is divided, with just about 40 percent taking each side.
Also important in determining support for filibusters is the substantive issue at stake: voters give “their side” more leeway.
Though we know little about how underlying values like majoritarianism operate, they are likely relatively stable. What changes are attitudes toward the policy issues being filibustered.
So while the country appears to have embraced filibuster reform, on any given issue, either party may be able to construct majority support for this anti-majoritarian tactic.
But senators cannot escape from the disrepute they earn from its frequent use.
Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982. Current clients include the majority leader of the Senate and the Democratic whip in the House.