-S JRMES M>O050sLecUe 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 PSOnlinewww.apsanet.org 31 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.