Supermajority Rule in the US Senate

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Supermajority Rule in the U.S. Senate

David R. Mayhew, YaleUniversity

For this occasion, I decided to tackle a Automaticfailure for bills not reach- have it rough today, they used to have topic of, I hope, some historicaland ing the 60 mark.That is the current it, if anything,rougher. Why worry? theoreticalinterest, of currentpolicy Senate practice,and in my view it has But was the past really like that? I importanceand one that might have in- arousedsurprisingly little interestor for one doubt it. This is a general im- terestedJames Madison.l That topic is concern among the public or even in pression.Across a wide range of issues, supermajorityrule in the U.S. Senate- political science.3It is treatedas matter- I doubt that the Senate of past genera- that is, the need to win more than a of-fact. One might ask: What ever hap- tions had any anti-majoritarianbarrier as simple majorityof senatorsto pass pened to the value of majorityrule? concrete,as decisive, or as consequen- laws. Great checker and balancer This is a complicatedquestion, but I tial as today's rule of 60. If anything, though Madison was, this featureof would guess that one reason for the floor majoritiesseem to have had it eas- Americaninstitutional life would proba- lack of interestor concern is an impres- ier. Consideroff the top, for example, bly have surprisedhim and might have sion of the past. If majorityrule is in the big tariff bills that often fired party distressedhim. principlethe preferredstandard, condi- passions and dominatedcongressional But we certainlyhave it today fili- tions may be bad in the Senate today politics from the 1820s throughthe busters,threatened filibusters, and the but weren't they even worse in the 1930s. Often, those bills cleared the three-fifthscloture requirement that, ex- past? After all, the cloture rule called Senate by sliver-smallmajorities, and cept on budgetingand a few other mat- for an even higher two-thirdsvote be- there does not seem to be much sign ters, dog the legislative process. The 60- tween 1917 and 1975 (that would mean that policy minoritiesenjoyed muscular votes barrierhas become hard contextual 67 senatorstoday, not 60). Some politi- options on them in the Senate that they fact for the press, as in WashingtonPost cal scientists are hypothesizingthe exis- lacked in the House (Schicklerand coverage of recent efforts to repeal the tence of a decisive two-thirds"filibuster Wawro2002, 18-34). inheritancetax and enact anti-cloning pivot" duringthat long middle half of This is an extremely difficult subject legislation:"The vote on the president's the 20th century(Young and Heitshusen on both logic and evidence grounds.It proposalwas 54 to 44, six short of the 2002; Sala 2002). Back before 1917, raises considerationsof anticipatedreac- 60 requiredfor passage"(Dewar and when there was no cloture rule at all, tions, threatenedas well as staged fili- Eilperin2002); "Neitherside appeared how did the Senate manage to enact busters,modification as well as blocking to have the 60 Senate votes needed to any legislation at all? In the face of this of bills, not to mention two centuriesof prevail"(Dewar 2002). Any observerof stylized history,the currentjudgment congressionalhistory. There are various recent Congressescan recite instancesof probablyis: If Senate floor majorities ways of attackingit. (For some, see cloture-rulecasual- Schicklerand ties for example, Wawro2002). But duringthe Democra- it is at least an em- tic Congressof pirical subject. 1993-94 underClin- Readingthe rules of ton, measuresin the the Senate to de- areas of campaign duce what happened financereform, lob- in the past is not bying reform,prod- enough. My course uct liability,striker here is to probe replacement,and into the Senate stimulatingthe recordof one par- economy (Binder ticularpast Con- and Smith 1997, gress with an eye 135; Fisk and for the strategies Chemerinsky1997, and actions of floor 182; Mayhew 1998, majoritiesand floor 274).2 In political minorities.If rules science, Keith Kre- are significant,they biel (1998) has ad- should leave traces dressedthe current in evidence about 60-votes Senate E qsbolbX' strategies. regime elegantly and James Madison I Lecture.2002 JamesMaclison Aword winner David R M The 75th Con- convincinglyin Universitydelivers th leMadison lecture at theAnnual Meeting in Boston.The A/ Aadison award is gress of 1937-38 is termsof a "filibuster giventriennially to a znAmericun politicul scientist who hos modea distinguishedscholarly my choice for ex- pivot." contributionto politic cal science. amination.This is

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This content downloaded from 128.36.174.30 on Wed, 17 Apr 2013 09:55:13 AM All use subject to JSTOR Terms and Conditions for three reasons. First, the majority gruesome southernlynchings, a nation- Senate, individualsenators took to an- party's legislative aspirationsduring that wide campaignto enact an anti-lynch- nouncingtheir positions one by one. Congress were unusuallyhigh. Possibly ing bill gained strengthin the 1930s The press offered horseracecoverage no party'shave ever been higher. peaking in 1937-38 (Sitkoff 1978, ch. centeringon which side could reach a FranklinRoosevelt had won a landslide 11). The House passed a bill in 1937, Senate majority that is, 49 votes. The reelection, the New Dealers entertained FDR said he would sign it, and it bet was on FDR the presidentwould a commensurateagenda, and the Repub- reachedthe Senate in January1938 probablyget his Court-packingplan if lican congressionalminority had been with some 70 senatorssaid to favor it he really wanted it but the Senate sta- reduced to 16 senatorsand 89 House (Time,Jan. 24, 1938, 10). But the tistics languishedalong at roughly one- members- lows for a majorparty dur- southernDemocratic senators, spotting a third yes, one-thirdno, and one-third ing the 20th century.In all of American threatto their region's system of white undecided.6 history, this may have been the left's supremacy,expressed "determinationto DuringApril and May (phase two), main chance for a policy breakthrough. preventthe bill ever reaching a vote." the SupremeCourt, evidently reactingto Second, it was widely believed, as the Many lengthy speeches ensued, as in its threateningpolitical environment, Congress began, that if any of the elec- the report:"[Allen] Ellender [D-LA] handeddown landmarkdecisions ap- tive institutionswas to block the New Speaks 4 Days and Goes On." Leader- proving the WagnerAct of 1935, the Dealers' initiativesduring 1937-38, it ship efforts to break the filibusterwere Social SecurityAct of 1935, and other had to be the Senate. The House Demo- lax: "Such rules as might be inconven- previous liberal or New Deal enact- cratic party entirely elected on a ticket ient for filibusterswere not enforced; ments. "Who needs a Court-packing with FDR in 1936 was thoughtto be in all-night or even long-continuedses- plan anymore?"came to be asked on his pocket. (As it happened,this proved sions were not employed"(Burdette Capitol Hill. Considerablesteam went not to be true.) Third, notwithstanding 1965, 198-99). After two weeks, some out of the White House legislative its immense Democraticmajorities, the 20 northernDemocrats nominally favor- drive, which fell below the likely ma- 75th Congressearned a place in history ing the bill signaled that it was time to jority mark in the Senate (Alsop and for blocking bills. Concertedopposition move on as there was "little likelihood Catledge 1938, 135-216).7 in that Congress is not a null topic of breakingthe filibuster."In late Janu- But then in June and July (phase (Mayhew 2000, 110-13, 219-22). ary and mid-February,successive cloture three), Roosevelt stubbornlyinsisted on Here, I will examine three lengthy, motions failed. The southernerscontin- a Court-expansionmeasure anyway, controversial,and well-publicizedleg- ued to obstruct.After seven weeks, the this time settling for one incremental islative drives of that Congress all of Senate voted 58-22 to lay the measure Justice per year (ratherthan six all at which failed. They are FDR's proposal aside. That concludedthe anti-lynching once). On this revised measurethe to pack the SupremeCourt, FDR's pro- drive of 1937-38.4 New Deal forces, led by Majority posal to reorganizethe executive Leader Joseph Robinson (D-AR), branch,and a majoranti-lynching meas- Court-Packing seemed to have a slim Senate majority. ure. The first two of these initiatives That was the informed reading (Alsop were top White House prioritiesin early In early 1937, PresidentRoosevelt, and Catledge 1938, 21743; Baker 1937. Structuralreform of the courts exasperatedby SupremeCourt strike- 1967, 231-34). It was showdown time. and agencies had to come first, the downs of several key New Deal enact- For the still adamantSenate opposition, White House view was, if New Deal ments during 1935-36 and worried any tamperingat all with the size of ambitionsin various policy areas were about more such strikedowns,proposed the SupremeCourt was poison. A vig- to succeed. The anti-lynchingmeasure a bill to authorizethe appointmentof orous filibusterloomed (Alsop and was not a White House or Democratic one additionalJustice for any current Catledge 1938, 248-50). Available for party priority,although it was advanced Justice over the age of 70. As of 1937, participation,according to Senator by congressionalliberals. Obviously,the this would have expandedthe Courtto Wheeler, were 43 senators "readyto civil rights area is an exception to any 15 membersby adding six FDR nomi- fight to the end in seven speaking general speculationthat Senate floor nees. One of the majorcontroversies of teams of five each and with eight sena- majoritiesmay have had it easy in ear- Americanpolitical history ensued (Alsop tors in reserve"(New YorkHeraZd Tri- lier times (Wolfinger1971). Accord- and Catledge 1938; Baker 1967). bune, July 3, 1937, 1). The ringleaders ingly, the inclusion of the anti-lynching Congressionalhandling of the Court- of this coalition, accordingto one ac- drive here, meritedin any case on packingproposal was lengthy and com- count, "constitutedthemselves a sort of groundsof its historicalimportance, will plicated.There were three phases. In battalionof death" (Alsop and Catledge afford some useful empiricaland theo- Februaryand March,the bill was taken 1938, 248). That gives a sense of the retical contrast. up in the Senate5where a vehement opposition's determination.8 I will present sketches of the three cross-partyopposition led by the veteran Given the two-thirdscloture rule, legislative drives, and then go on to of- ProgressiveBurton K. Wheeler (D-MT) shouldn'tthat have been the end of it? fer three theoreticalarguments regarding devised a steering committeeand a In fact, it wasn't. MajorityLeader the strategiespursued by the relevant whippingsystem and joined an anti- Robinson moved to crack down on ob- political actors in these various drives FDR media campaign(Alsop and structive activity, and the Senate's pre- and the contexts in which they were Catledge 1938, 80-105; Patterson1967, siding officer, Key Pittman(D-NV), pursued. ch. 3). Soon, radio listeners across the contributedsome proceduralrulings fa- countrycould tune in to hear such sena- vorable to the White House cause.9It Anti-Lynching tors as Wheeler,Josiah Bailey (D-NC), was not clear what the outcome would CarterGlass (D-VA), Henry Cabot be. "The Presidenttold me he thought This sketch can be very brief, since Lodge (R-MA), and ArthurVandenberg there were enough votes to put the it bears out everybody'simage of civil (R-MI) inveigh against the president's Court programacross," InteriorSecre- rights legislating during earliertimes. plan (Baker 1967, ch. 6; Moore 1968, tary HaroldIckes entered in his diary" There are no surprises.Aided by some ch. 8; Wheeler 1962, ch. 15). In the (1954, 166). SenatorWheeler met with

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This content downloaded from 128.36.174.30 on Wed, 17 Apr 2013 09:55:13 AM All use subject to JSTOR Terms and Conditions FDR but no compromiseemerged: many came to see the reorganization Explaining the Patterns "Roosevelt believed his men had the plan as a dangerousWhite House Senate votes to pass the Court bill. power grab. The House acted first and Those are the three sketches. All Wheeler believed he had the strength, favorably.But as the plan reachedthe three bills ran up against sizable com- by means of a filibuster,to prevent a Senate floor in March 1938, an opposi- mitted minorities.All three bills failed vote from being taken" (Baker 1967, tion coalition of some 40 senatorscoa- on Capitol Hill, somehow. But what we 239). Many prognosticationsignored or lesced under the do not see is downplayedthe cloture rule. In the leadershipof, anythinglike an New YorkHerald Tribune(July 6, 1937, automaticappli- 9): "Veteransare inclined to agree that Wheeler (New One way tlzo slze Up cation of the no filibusterreally succeeds except at the Senate two-thirdspivot the end of a session." In anothernews- March 9, 1938, ty paper: "Generalopinion is the substi- 4). The stakes iS to watch1 the cir- Senate. Indeed, tute will pass, and sooner than ex- were thought to . . the one measure pected, since votes enough to pass it be high. Under Cu msta n cez In Whlch that certifiably seem apparent,and the opposition can- ,,, did fall to a fili- not filibusterforever" (Leuchtenburg "WheelerWarns members wl favor buster,the anti- 149). In the New YorkTimes 1995, lynching bill, (July 2, 1937, 5): "As time marches on SeicntatteAhgainStfo Id i n g o n( I eg i s I ative and they [the obstructingsenators] see to move to tlon on the mer- their local bills dying of attrition,it is ofOnerePorttold "heatedinter- drive so as confidentlyexpected by administration changes which an ot h e r one can tell, of chiefs that they will have a change of were reminiscent fewer than the heart and let the compromisecome to a of the days 33 senators(that vote." As of early July, accordingto when SenatorWheeler led the coalition is, one-thirdplus one of the member- Alsop and Catledge (1938, 244), "The fight on the President'scourt plan" ship) requiredto work the pivot. The two sides were so evenly matched and (New York Herald Tribune, March9, Court-packingand reorganizationbills placed that none could tell how the 1938, 1, 10). Senator David I. Walsh drew spiritedminority oppositions of fight would end." (D-MA) saw in the reorganizationplan considerablymore than 33 senators,but In the end, fate intruded.Senator a ;'plungingof a dagger into the very obstructivefilibustering might or might Robinson, the respected and, by some, heart of democracy"(Davis 1993, 213). not have worked in the formercase no beloved Democratic leader died of a The Senate debatedfor several weeks one will ever know for sure and was heart attack in mid-July as a likely re- amid well-publicizedmaneuvering by not tried in the latter. sult of overexertionin the Court-pack- both sides (Polenberg 1966, ch. 6). What can be said that might illumi- ing cause, and that was that. Because But the opposition's strategy was nate these various results and the strate- of, or at least concurrentwith, Robin- thoroughlymajoritarian. It was to offer gies that undexpinnedthem? To me, a son's death any Senate floor majority several appealing uppercutamendments good deal of mystery remains,but I for the substitutemeasure disappeared in the hope that one or more would at- came away from the recordswith three and the bill was sent back to commit- tract a floor majority.Success nearly general idea or conjecturesthat might tee for burial (Alsop and Catledge came with a "WheelerAmendment" help Each of them involves relaxing an 1938, 266-94). Interestingly,the House that lost in a tense 43 to 39 show- assumptionoften made in studyingcon- may have also lost its floor majority down. As for obstruction,or ratherits gressionalbehavior. for the proposal at roughly this time, lack, the opposition twice signed on to althoughno vote was taken (Baker unanimousconsent agreementsthat 1JThe Senafe, with Its Rules that 1967, 243; New YorkTimes, July 14, guaranteeda final up-or-downSenate AllowSlowdowns, is Unusually 1937, 1). decision (Altman 1938, 1111-12), Good at Accommodating which came in a favorable vote of 49 Differencesin Intensity Executive Reorganization to 42 in late March.l°Yet a surprise was in store. Tens of thousandsof anti- The Senate is probablybetter in this In many ways, the controversyover reorganizationprotest telegrams,in- regardthan the formally majoritarian executive reorganizationduring the 75th spired by the Gannettnewspaper chain U.S. House, althoughas Buchananand Congress was a replay of the Court- and its spinoff National Committeeto Tullock pointed out years ago (1962), packing struggle. It reached decision Uphold ConstitutionalGovernment, legislaturesin general are pretty good at time a year later. In the reorganization flooded into the Capitol in late March accommodatingdifferences in intensity. case also, the presidentrequested in and early April. The public seemed to That is one reason for having legisla- early 1937, by way of a legislative probe alarmed.That helped along a dra- tures. For purposeshere, the assumption posal, vastly more leeway vis-a-vis an- matic result in the House, where the that needs relaxing is one that is sur- other branchof government.In this reorganizationplan, back for a second prisinglycommonly embedded,without case that leeway involved, among other round of decision, was voted down by thinkingabout it very much, in legisla- things, authorityto reorganizeaccording 204 to 196 on April 8 in an astounding tive research that membershave equal to presidentialtaste any element of the defeat for the Roosevelt presidency intensitieson any issue and across all executive branchthough without the (Polenberg 1966, ch. 8). Executive re- issues. They do not, and the fact that legislative veto power over specific organizationwas finally killed in 1938, they do not helps to promotecontinual plans that Congress did successfully in- but a publicity campaign and the vote-tradingamong membersand across sist on in the well-known reorganiza- House did it, not the Senate. So much issues in the form of explicit or implicit tion bill enacted later in 1939 (Polen- for the Senate as the blocking institu- logrolling (Stearns 1994, 1277-80). In berg 1966, chs. 1, 2). Not surprisingly, tion of last resort. the particularcase of the U.S. Senate,

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This content downloaded from 128.36.174.30 on Wed, 17 Apr 2013 09:55:13 AM All use subject to JSTOR Terms and Conditions the rules of that body that allow slow- ecutive reorganizationdrives of rules. One theme in contemporarypolit- downs give, in effect, extra stacks of 1937-38, unlike the anti-lynchingdrive, ical science is that legislative rules can tradingchips to intense minoritiesthat did not featurean intensity differential be manipulated(Riker 1986). But leg- face not-so-intensemajorities. between the two sides. Yes, this claim islative rules can also be changed, Perhapsthis argumentabout the Sen- needs defense: Questions of evidence which seems to be a distinctly different ate is obvious, but the disparateout- arise, distributionsof views as well as matter.l7As of the 1930s, the history of comes I have pointedto duringthe 75th coalition medians need to be considered, Anglo-Americanlegislatures had been, Congressplace it in relief. For an inten- and, on the Court-packingmatter, an in- among other things, a record of majori- sity differentialon CapitolHill, at least tensity gap had indeed quite possibly tariancoups. Minoritiesenjoyed proce- in the realm of reasonablybroad issues, opened up by mid-Julyof 1937. But the dural prerogativesyesterday that they possibly nothingin Americanhistory has claim will probablystand. That raises suddenlylost today. Shut down on the matchedcivil rights from the 1890s the general question:Given a condition spot in such fashion had been Federal- throughthe 1950s.ll That helps account of approximatelyequal intensities,was ists in the U.S. House in 1811 (Adams for the Senate's distinctivezero-outcome it possible for Senate minoritiesto 1986, 24446), Irish Nationalistsin the recordon civil rights duringthat time. block Senate majoritiesback then? That British House of Commonsin 1881 Anti-civil rights southernersrepresenting is possibly the $64,000 question.Let (Jennings 1969, 127-30), Democratic their region's dominantwhite caste cared me restateit more particularlyand pose victims of the "Reed Rules" in the U.S a lot; pro-civilrights northernersrepre- it as a historicalquestion covering in House in 1890 (Schickler 2001, 32-43), senting few blacks and largely indiffer- principlethe entire centuryand a half and Progressiveobstructors of a cur- ent whites cared little. As a plausiblein- of Americanexperience before World rency bill in the U.S. Senate in 1908 dicatorof intensity which is always War II. Given a condition of roughly (Burdette1965, 83-91). Although per- difficultto measure the southernsena- equal intensitieson measurespressed as haps short of the coup category,com- tors were willing to talk forever and stay high prioritiesby presidentsor congres- mon-law-typerulings from the chair, of up all night. This commitmentseems to sional majorityparties, given probably which the Senate had seen many, could be have been electorallyinduced, in the also the backgroundenvironment of a in effect change the rules and hobble or sense that the southernerscould have non-lameduckCongress (in the old inconvenienceobstructive minorities. gotten themselvesinto political trouble lameduckCongresses, obstruction was That had happenedas recently as 1935 back home by not filibusteringagainst easier because of the March 3 closing (Burdette1965, 185), and indeed it civil rights bills.l2 The effect was a kind deadlines),l5was it possible for Senate happenedduring the Court-packingde- of electorally-inducedweighted voting.'3 minoritiesto block the legislative drives bate itself in July 1937 as Senator Northernsenators, on the other hand, of Senate majoritiesback then? In fact, Pittman,acting in complicity with Ma- tended to eye the opportunitycosts of there seems to be precious little evi- jority Leader Robinson,handed down trying to match the southerners'com- dence that it was-either before or after restrictiverulings that won standingas mitmentof time and energy and say no. the 1917 cloture reform (see Schickler Senate precedents one involving the Other agenda items beckoned. One way and Wawro2002; Burdette 1965; Binder meaning of "legislativeday" (New York to size up intensityin the Senate is to and Smith 1997, 135). What are the in- Times,July 9, 1937, 1, 5; Riddick watch the circumstancesin which mem- stances?l6If this conjectureabout the 1974, 436-38). Accordingto a contem- bers will favor folding one legislative history is, for whateverreasons, correct, porarypolitical scientist's account:"A drive so as to move to another.In the that should reduce our surprisethat the plethoraof points of order and parlia- civil rights area, in the face of southern leaders of the Court-packingdrive mentaryinquiries, though time-consum- obstruction,such proceduralswitching thoughtthey could just bull their bill ing, failed to upset the chair's constric- was once a signaturemove for many throughin 1937 or that the opponents tive rulings.... For several days the northerners.In 1890-91, the Federal of executive reorganizationdid not even deadlockedsides jockeyed for position, Elections Bill gave way to pressing tar- try to obstructin 1938. There was solid not only in the Senate but before the iff and silver issues (Welch 1965). The warrantfor both strategies. bar of public opinion. SenatorRobin- anti-lynchingcause had to give way to son's death, however, suddenly de- "the New Deal's 1935 program"or, for 2J TheRules Environment in the stroyed his majorityand ended the SenatorGeorge Norris (Ind-NE), "im- Senatecan be Unclear drama.In the failure to complete this portanteconomic legislation,"in 1935 experimentin defeating a filibusterby a (Sitkoff 1978, 288; Greenbaum1967, A two-thirdsrule is a two-thirdsrule, novel interpretationof the regularSen- 83); to "manyother importantmeas- is it not? Not so fast! Wordson paper ate rules, it is possible that a valuable ures" includinga $250 million relief are one thing, but the hard-headedex- precedentfor the futurewas lost" (Alt- bill in 1938 (New YorkTimes, January pectationsof politicians about how the man 1937, 1079). 25, 1938, 6; Sitkoff 1978, 294); to de- Senate will actually operateare another. One way to put it is that the Senate's fense and foreign policy considerations In fact, in the case of the Court-packing two-thirdscloture rule back then seemed in 1940 (Sitkoff 1978, 295).l4 As a bill of 1937, it was not clear to the to lack the surenessof that body's other practicalmatter, costs beyond foregone politiciansor the Washingtonpress familiartwo-thirds hurdles involving agenda items could arise for northern corps what would happen if one-third veto overridesand treatyratifications. It senatorschoosing to combat these plus one of the senatorstried to block was less sure at least because it was southerntalkathons. Those might in- it. This was at least because no one less exogenous. In this circumstance,it clude lost family time, impairedhealth, could be certainwhat a determined was risky for a determinedopposition to and even, as SenatorRobinson found in floor majority,in league with a friendly place anythinglike all its eggs in the the swelteringnon-air-conditioned Sen- Senate presidingofficer, would do in a cloture-rulebasket perhapsespecially ate of the summerof 1937, their lives. pinch. on an issue so explosive as Court-pack- For the analysis here, the main point For analyticpurposes, the assumption ing. An alternativecourse of action was is a contrast.The Court-packingand ex- that needs relaxing here is that of fixed more prudent,as see below.

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This content downloaded from 128.36.174.30 on Wed, 17 Apr 2013 09:55:13 AM All use subject to JSTOR Terms and Conditions 3) Ohen, on a HighlyProminent This strategy,aided to be sure by anti- can make legislative drives of those Issue,the BestBlocking Strategy for FDR opinion leaders outside the Senate eras look surprisinglysimilar. In this re- SenateMinority is to Try and by the SupremeCourt's own retreat gard, I recommendback-to-back reading a Sizable from its previous rulings, was evidently of Alsop and Catledge (1938) on the to Shape PublicOpinion a brilliantsuccess. "Ratherthan being Court-packingsaga of 1937 and John- To say this is to relax an assumption the ally of the Courtbill's successful son and Broder (1996) on Clinton's that the public, or politiciansresponsive passage, time was the enemy. Time per- health-carereform drive in 1993-94. to it, possess fixed views on public is- mitted the opponentsto gain strength, There is considerablecommonality in sues. Very often they do not. Rarely is extend their propaganda,augment their opinion dynamics, and one does not any congressionalproposal an exact du- forces" (Baker 1967, 152). Over the come away with a judgmentthat the plicate of a previous one. Some propos- months, public supportfor the presi- Senate cloture rule played much of a als, such as Court-packingand execu- dent's plan tailed off (Caldeira1987, role in either outcome.l9 tive reorganizationin 1937-38, are 1147). It is a good bet that declining * * * brand-new.Even where legislative pro- public supportcame to influencethe po- In sum, to try to get a handle on posals come to map onto the country's sitions of many senatorson the Court- Senate supermajoritypolitics of earlier dominantideological dimension,as packing plan, as well as their intensi- times specifically here, the Congress many, perhapsmost, do, membersof ties. By July 1937, the legislative drive of 1937-38 it may make sense to con- Congress and others routinelymove to seemed to be sliding into an adversein- sider three theoreticalmoves.20 First, shape public and elite opinion so as to tensities gap where the chances of suc- look to intensity differences.That is, affect the correlationof any such map- cessful minorityobstruction seem to relax the assumptionof equal member ping and its cutpoint.There is a good maximize,but we will never know if it intensities. Second, look to the potential case for endogenizingsuch shaping ac- had slid far enough.18 on-the-spotcreation of new rules. That tivity into analysis of congressionalcon- In the argumenthere, the importance is, relax the assumptionof fixed rules. text and strategy(see Jacobs and of strategiesaimed at shaping opinion is Third, look to the shaping of public Shapiro2000; Mayhew 2000). as follows. To the extent that such opinion. That is, relax the assumption All this was obvious to the Wheeler- strategiesare employed, the cloture rule of fixed public (and induced fixed led opponentsof Court-packingin 1937. and other congressionalprocedures can member)views. An implicationof the They did not say: "We have the requi- recede into a faint role or no role at all. analysis is that Senate floor majorities, site 33 nay votes [which in fact they Somethingelse taking place in the the classic and major exception of civil very quickly did have] so don't try to realm of strategycan be important,even rights issues aside, may not have had it roll over us." Rather,they headed for determinative.Moreover, as a compara- worse back then. If anything,given the the radio and the local speech circuit tive matter,similar exercises of opinion evident hardnessof today's sixty-vote aroundthe countryto make their case. leadershipundertaken in differenteras rule, they may even have had it easier.

Notes 1 I would like to thank Alan Gerber and Eric but sent it to the floor anyway. So much for weighted voting appears in Hall's (1996) study Schickler for their help on this work. A useful committees as automaticblockers of measures of interest group influence in congressional clarifying point came from Morris Fiorina. they do not like. The verdict of the committee committees. Matthew Glassman helped with the references. majority was not wishy-washy: "It is a measure 14. A generation later, a similar logic involv- 2. Although evidently not Clinton's health- which should be so emphatically rejected that its ing intensities and trading obtained in the drive care reform measure, which never commanded parallel will never again be presented to the free to pass the Civil Rights Act of 1957. The times 218 votes in the House. See Johnson and representativesof the free people of America." had changed, and the southern senators could Broder 1996, 509. Alsop and Catledge 1938, 233. not completely block this bill, but they could 3. Although see Gilmour 1994. 8. For the looming filibuster, see also New take steps to modify it. Famously, they made a 4. Most of this chronology is from the New YorkTimes, 1938: June 6, p. 37; June 16, p. 16; deal with relatively indifferent westerners sup- YorkTimes of 1938: January 9, p. 1 (first quo- June27,p. l;June28,p.4;July2,pp. 1,5; port for the Hells Canyon Dam in exchange for tation); January 19, p. 4 (second quotation); July3,p. l;July6,pp. 1,20;July 14,p. 1. dilution of the civil rights measure. See Caro January 22, p. 5 (the northern Democrats); 9. New YorkTimes, 1938: July 6, pp. 1, 20; 7, 2002, ch. 38. By the time of the civil rights en- January 23, p. 5; January 27, p. 6; February p. 1; 9, pp. 1, 5; 11, p. 1; 13, pp. 1, 8; 14, p. 1. actments of 1964 and 1965, the southern versus 17, p. 12; February 22, p. 1. 10. Por these events, see New YorkTimes, northernintensities had probably more or less 5. White House strategists bypassed the 1938: March 10, p. 1 (majoritarianstrategy); equalized. House at this stage because of the stern upfront March 19, p. 1 (Wheeler Amendment); March 15. There were two other reasons why ob- opposition of Hatton Sumners (D-TX), chair- 28, p. 1 (unanimous consent); March 29, p. 1 struction might have been more successfully man of the Judiciary Committee. Still, it was (final passage). prosecuted during lameduck Congresses. The assumed that the House would swing into line 11. During the last half century, the best can- Congresses still considering laws had hemor- eventually. See Alsop and Catledge 1938, 51; didate for an intensity differential may be la- rhaged legitimacy because new elections had New YorkTimes, February 8, 1937, 6. bor-managementrelations, on which congres- chosen their successors, and congressional mi- 6. Most of this chronology is from the New sional Democrats often seem to have shallow nority parties, not trusting presidents to run the YorkTimes of 1937. The initial situation: Febru- commitments to unions and Republican deep country by themselves from March through ary 7, p. 1; 8, p. 1. The horserace coverage: commitments to business. Striker replacement November, occasionally tried to block legisla- February 10, p. 1; 14, p. 28; 15, p. 1; 17, p. 2; legislation easily lost out to Senate obstruction tion before March 4 so as to force the calling 22, p. 1; 24, p. 1; 25, p. 1. The opposition: in 1993-94, and overhaul of the Taft-Hartley of special congressional sessions. February 10, pp. 1, 15; 12, p. 1; 19, p. 1; 23, Act suffered that fate in 1965-66. 16. To be sure, presidents or parties may p. 4. For horserace coverage see also Time, Feb- 12. Such back-home trouble in primaries or sometimes refrain from proposing measures that ruary 22, 1937, 11-13; March 1, 1937, 1s13. general elections might serve as an indirect evi- they see will be blocked. But we shouldn't be- 7. There was an interesting sideline wrinkle in dential guide to member intensity. come immobilized by this consideration. Politi- June. The Senate JudiciaryCommittee voted by 13. A similar effect of something like soci- cal actors may advance proposals anyway if 10 to 8 to disapprove the Court-packingmeasure etally, if not exactly electorally, induced they see them to be necessary, right, popular

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This content downloaded from 128.36.174.30 on Wed, 17 Apr 2013 09:55:13 AM All use subject to JSTOR Terms and Conditions generally, popular with key minorities, or possi- portfolios. That is, a senator can at once oppose and Broder1996, 371). Withnumbers like bly merchandisable. a measure and oppose obstruction against it. these, not muchroom remains for a procedu- 17. Riker takes up Speaker Reed's rules Senator Gordon Smith (R-OR) did that at a rally obstructiveopposition. changes of 1890 in his work on "heresthetics" critical moment on the McCain-Feingold cam- 20. It shouldgo withoutsaying that this is (1986), but this incident fits oddly into a book paign-finance reform bill in early 2002. not an exhaustivelist of possiblyuseful moves. that is otherwise largely about manipulation of 19. In a Gallup poll in April 1994, "by a I have not takenup Oppenheimer's(1985) case existent rules. two-to-one margin [respondents]thought quality that ampleSenate debate time owing to much 18. At the cusp of successful obstruction, a of care would decline and they would be worse slimmerissue agendasmade effective obstruc- complicating factor can be that some senators off" if the Clinton plan became law (Johnson tion a chancierproposition in earliertimes. may choose to diversity their position-taking

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