[BTD] Q: Senator [. . .] Your mention of 60 votes and 50 votes put in mind to me and considering your considerable experience in the Senate; has this idea that 60 votes to get a bill passed; when did that become basically the rule of thumb in the Senate? Wasn’t there a time, Senator, when the filibuster was not something that would be used quite so frequently and basically as a rule of thumb? Wasn’t there a time when, yes, on certain, very contentious measures, of course, there would be a filibuster, but most bills could go to the floor and then there’d be an up or down vote; 50, plus the Vice President or 51 would pass the measure? When did it become the custom for the Senate to say they need 60 ‘yes’ votes on a measure in order for it to be enacted as law?

I can remind you that in 2005 the Bankruptcy Reform Bill was voted on for cloture, there was 60 votes for cloture, but there was not 60 votes for that bill itself. I can remind you that Senator Lieberman, himself, voted for cloture on the Bankruptcy Reform Bill, but then against the bill itself. When did this happen and do you think that’s a good thing?

AS: The rule has been 60 votes for a long time. When did it start to happen? I believe if you look back to Senator Mitchell’s leadership; he was the leader after the ’86 election. Byrd was for the first Congress and then Mitchell took over. I think it started to be used then and it picked up a lot of steam when Lott was leader and then it sort of went wild in 2005 and ’06 on the judges where there was a lot of talk about the so called nuclear constitutional option and we worked that out with the committee of gang of 14. When did we technically have 60? Well, it used to be 67.

Q: Right. I understand the history, but in terms of just the day to day custom of operation, Senator, and, again, I like the notion of the extraordinary [circumstances.] The gang of 14, I think you were a member of it, in the judicial context argued a filibuster should only be used in extraordinary circumstances. That doesn’t seem to be a rule anymore.

AS: That is true. The gang of 14 structured a compromise where a number of judges were confirmed and others were rejected and we got over that hump and then the filibuster has been used again on judges who are really spotless; Hamilton, Vanaskie, and other, so that now it is the vogue and it’s not only on judges, it’s on nominations, and it’s on bills. At the same time it has become commonplace. We have moved away from making people filibuster, but only to say they will filibuster and then to require 60 votes. Then we have amendments where the agreement is made to require 60 votes to pass it where you don’t even have a cloture vote; you have imported to 60 vote rule. I would say it really picked up during Lott’s tenure as Majority Leader.

Mostly, Senator Spector either ducked my question or I failed to explain it well. But he does peg the time to when George Mitchell became the Senate Majority Leadcer in 1986. I think Matt Yglesias has a more precise moment of when the big shift happened:

If you think about how our institutions work, though, I think the key actor here was actually Bob Dole, who agreed to go along with a Senate version of [Gingrich-like obstructionism.] The House can function as a somewhat parliamentary-style body in which the majority party works out something that its members can get behind and passes it. The countermajoritarian senate isn’t like that. To function at all it requires a spirit of cooperation, one that’s currently lacking.

I think that's right. And I also think that misunderstands what the "Grand Compromise" that created the Senate was about:

As an institution, the Senate can claim several starting dates. In 1987, senators and representatives traveled to Philadelphia to commemorate one of them—July 16. On July 16, 1787, the Constitution's framers arrived at the so-called "Great Compromise," which provided that states would be represented equally in the Senate and in proportion to their populations in the House. Without that compromise, there would likely have been no Constitution, no Senate, and no United States as we know it today.

The Senate was created to protect small states from the rule of the big states (population-wise) of course. So the Senate provides equal representation for Wyoming (population - 532,000) as it does for California (population - 36,700,000.) To do the quick math, in the Senate 1 Wyomingian is equal to 74 Californians. Talk about your 3/5 rules.

In any event, this anti-democratic structure is magnified because of the constant use of the filibuster. So now the Senators from states with a population, counting very generously, 120 million inhabitants, can block legislation favored by Senators from states with 210 million inhabitants.

And that is because of the filibuster.

I've always defended judicial filibusters as a procedure because they involve lifetime appointments for the Third Branch of our Constitutional government. And of course, the Senate can make any rules it wants - it can say you need unanimous consent to pass a bill. The Constitution allows that.

But it should not. And the Senate should not follow that practice. The filibuster outside of the judicial context can no longer be defended as viable policy.

It should be abolished for legislation and for Presidential administration appointments. Democrats should run on this issue in 2010. It may not win (or lose) them many votes, but it is important to start the conversation.

Speaking for me only