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TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Now that Republican Scott Brown has been elected to fill Ted Kennedy's Senate seat, the Democrats no longer have the 60 seats in the Senate they need to override a filibuster. That could kill the health care bill.

The threat of filibuster has been looming over the proceedings of the Senate all year, but today on "Good Morning America," Ed Rendell, the governor of Pennsylvania, said, quote, "Make them filibuster. Make the American people look at a modern-day spectacle of what a filibuster would entail," unquote.

Democratic Senator Tom Harkin would like to reform the filibuster rules of the Senate so that eventually, a simple majority vote could pass legislation.

During the George W. Bush presidency, when Democrats were in the minority in the Senate, they used the threat of filibuster to block some of Bush's judicial nominees.

So with all this controversy over the use of the filibuster, we're going to take a look at how the filibuster was created and how it's functioned over time. My guest is Greg Koger, the author of the forthcoming book "Going to the Mattresses: The History of Filibustering in Congress." He's an assistant professor of political science at the University of Miami.

Greg Koger, welcome to FRESH AIR. Before we get into what's happening politically now, I'm just going to start with the very basics. Tell us what we mean now by a filibuster and what you need to get a filibuster to end.

Professor´┐ŻGREG KOGER (Political Science, University of Miami; Author, "Going to the Mattresses: The History of Filibustering in Congress"): Right now, a filibuster means that some senator or group of senators will not allow the Senate to set a time for voting on a bill or nomination. And what they are threatening is that they will speak forever, although they won't actually be forced to speak forever. And the way that majorities in the Senate typically respond to that is by filing for a cloture petition, and it takes 60 votes to successfully invoke cloture. And what that does is it limits debate on a bill or nomination to 30 hours.

GROSS: The impression many people have now is that the filibuster is being used by Republicans to block just about any piece of legislation that the Democrats are trying to pass. Having studied the history of the filibuster, do you think that the filibuster is being used more frequently now and for more reasons now than has ever historically been true before?

Prof. KOGER: Over the last 20 years, we sort of reached a very high plateau for filibustering in which any senator feels comfortable threatening to filibuster legislation or nomination. And since a minority party is usually more than 40 - holds more than 40 seats in the Senate, that usually means that if they stick together, they can block any piece of legislation.

So what's changed over the last, say, 10 years is just this - is the combination of the system that allows filibustering to occur quite easily and the polarization of the two American political parties so that it's much more likely that the minority party can stick together on these cloture votes and that they might do so for strategic reasons.

GROSS: Most people think of the filibuster as the classic filibuster where somebody's just making a long-winded speech endlessly or reading from the phone book or just, like, reading from anything in general just to keep the filibuster going.

Nowadays, filibusters are just the threat of a filibuster. You don't see senators on the floor actually making endless speeches. It's just the threat of having enough votes to prevent cloture. Why is that? Everybody wants to know: Why don't the Democrats, when they're threatened with a filibuster, why don't think insist oh, yeah? Well, go ahead and make speeches for days and days and days. Go ahead.

Prof. KOGER: Well, you're right. It used to be that way, up until the early 1960s. And what basically happened is that senators realized that it was very difficult to actually wait out a filibuster, and at the same time, that the other things they could be doing with their time were very valuable to them.

They could flying back home or holding fundraisers or working committee. And so there was a sort of collective decision that they weren't going to try to fight these old-style battles anymore, that they would file what's known as a cloture petition, and if they had the votes, they'd win. If they didn't have the votes, they'd lose, but they'd live with that and they wouldn't try to wait out a filibuster.

GROSS: If the Democrats, who are the majority party now, did insist that they wanted the Republicans to do the full-fledged filibuster, do the whole theater of it, what would that mean for the Republicans? What would they have to do?

Prof. KOGER: They would have to continuously occupy the floor of the Senate. At least one person would have to be there speaking or making motions at all times.

Now that, actually, wouldn't be that difficult for them on, say, health care bill, because there's, you know, now 41 of them, and many of them are very passionate opponents of this bill. And so they'd probably enjoy standing up and speaking for four to six hours against it.

GROSS: So also, you know, in answer to the people who say how come the Democrats now aren't, like, getting the Republicans to do the full-blown theater of filibuster, you say one of the reasons why is the quorum call, that the Republican - the lone Republican in the chamber who's doing the filibuster can, at any time, do a quorum call. What does that mean, and what would the implications of that be in the middle of a filibuster?

Prof. KOGER: Right. The Constitution says that a majority shall constitute a quorum of either chamber. And what that means is that at any point in time, if a legislature is trying to do something, there has to be at least half the membership there, present and ready to legislate.

So what that means in the context of a filibuster is that if somebody is speaking, and then what they can do is they note the absence of a quorum, which means I don't think there's really a majority of the Senate here. Which is probably true, because on any given day, there's very few people actually sitting in the Senate chamber.

So if there's a filibuster going on, and a senator notes the absence of a quorum, what that means is that the supporters of the bill, the people who are fighting the filibuster, have to prove that there is a majority of the chamber there, and so they have to, you know, they would have to be in the chamber. They flood in the chamber from, you know, maybe they're sitting right outside, and prove that there is, in fact, a majority of the chamber ready to do business.

And if there isn't a majority ready to do business, then the whole chamber just sort of comes to a screeching halt, and it just sits there empty - well, doing nothing until the supporters of the bill actually do bring in a majority of the chamber and prove that it's ready to do business.

GROSS: But it's kind of doing nothing, anyways, during the filibuster.

(Soundbite of laughter)

GROSS: So what's the difference between doing nothing because it's shut down and doing nothing because there's a filibuster occupying all the time?

Prof. KOGER: Well, at least in theory, if somebody is standing and speaking, that's doing something. And - whereas if there's no quorum, then doing nothing means literally they just sit and look at each and say, well, I wish there were more people here.

And so - and the only thing they can accomplish at that point is to just go home, to adjourn, or they can ask the sergeant at arms to bring in some of the missing senators.

There's a famous case of this in 1988, when Robert Byrd, the majority leader, he's trying for really the last real time to have a live filibuster and actually make, in this case, the Republicans conduct a live filibuster against campaign finance reform.

So Byrd moved to have the sergeant at arms bring in missing senators. And the sergeant at arms then went up to Bob Packwood's office. He's a Republican from Oregon. Packwood had, like, blocked the door of his office, had put a desk there to keep the sergeant at arms out.

So the sergeant at arms gets some other - some aid, and forces the door open. In doing so, he sort of injures Packwood's arm, and then they literally carry him, like a protestor, to the Senate chamber and say here's one of the missing senators.

GROSS: Do you think filibustering was a different kind of tactic before politics was as polarized as it is today, where parties - and probably particularly the Republican Party - tends to vote in a bloc? There seems to be much less bipartisanship than in other eras. So has that made filibustering into a different animal?

Prof. KOGER: In some ways, yes. I mean, in my writing, I've defended the filibuster because it does promote, you know, compromise and bipartisanship and moderation. And in the long run, I think these are good things.

But faced with a minority party that seems completely unified - and partially that's for strategic reasons - it seems difficult, we'll say, to have a set of rules that promote bipartisanship. They're intended to thrive in an environment of bipartisanship and compromise when, you know, very few - it's very difficult to get any member of the minority party to engage in a conversation.

So, yeah. I mean, there does seem to be, we'll say, a mismatch between the existing Senate rules and the behavior of the minority party in the current Senate. Although, I mean, to be fair, the Republicans would suggest that the Democrats have not gone as far as they could have to reach out.

GROSS: To reach out across the aisle and make compromises.

Prof. KOGER: That's right.

GROSS: My guest is Greg Koger, the author of the forthcoming book "Going to the Mattresses: The History of Filibustering in Congress." We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Greg Koger, author of the forthcoming book "Going to the Mattresses: The History of Filibustering in Congress." We're talking about some of the questions many people have about how the threat of a filibuster is used in the Senate.

GROSS: You know, the Constitution says that in the Senate, it should take a simple majority to pass legislation. And nowadays, like right now, it seems to take 60 votes to pass any legislation instead of 51, because 60 is what you need for cloture.

And some people are raising the question: Have we gotten to the point where the Senate is operating in a way that's unconstitutional, since the Senate says that unless it's a treaty, impeachment, expulsion from office or a constitutional amendment, it should be just a simple majority? So I wonder what you'd respond to on that, what you'd respond on that.

Prof. KOGER: Well, I think the key phrase of the Constitution is from Article 1. It says that each house may determine the rules of its proceedings. And the Senate has the rules that it has on some level because this is the way they want to do business. And so that makes it -to me, that makes it constitutional, and so it's hard to say that, you know, the Senate is unconstitutional.

I mean, but what you can say instead is that, you know, that because the combination of the Senate filibuster and, you know, the polarization of parties, that there is more stability in the legislative system than the authors of the Constitution ever intended there to be, that it's so much harder to get anything done than ever intended.

GROSS: Are there ways that the majority party can get around the minority party when the minority party is filibustering? Like, are there tools in this case that the Democrats could use that they haven't used?

Prof. KOGER: Definitely, yes. The central theme is that the rules of the Senate are interpreted by a majority of the Senate, and that includes the possibilities of just suggesting that there's some constitutional mandate or obligation which trumps the letter of the Senate rules. So any strategy would probably take advantage of that idea.

My favorite example, because it's relatively simple, is that these - one Senate rule provides for a motion to suspend the rules, which is exactly what it sounds like. It says - it means that, you know, no matter what the rules say, that it's inconvenient to follow them because I want to do this one thing.

And that one thing could be setting a date and a time to actually vote on, say, health care reform. And so you can suspend the rules to do that. The problem...

GROSS: Wait a minute. Would you need 60 votes to suspend the rules?

Prof. KOGER: No. What you do need is a two-thirds super-majority. But the letter of the rule doesn't say that, and so by implication, the proper interpretation of the rule is that it takes a simple majority.

Back in 1915, ironically, a majority of the Senate decided that it takes a two-thirds majority to suspend the rules. But that's just an interpretation, and I think it's just a defiance of what that rule actually says. So you could restore the proper interpretation of that rule and suspend the rules by a simple majority vote.

The other thing that senators would have to do is enact a second precedent, an interpretation, saying that a motion to suspend the rules cannot itself be filibustered, as the House has done in the past. The combination of those things, preventing the obstruction of a motion to suspend the rules and restoring a threshold to a simple majority, would give the majority party, or a majority faction of the Senate, a parliamentary device that it could use to prevent a filibuster on a bill.

GROSS: So then the filibuster would be nullified any time there was a simple majority to bypass the filibuster.

Prof. KOGER: That's right.

GROSS: Any other insider, technical ways that a majority party has of getting around a minority party's filibuster?

Prof. KOGER: Yeah. I mean, historically one way to get around some of the difficulties that legislators have with the rules is to assert that there is a constitutional mandate which overrides the letter of the rules.

So if the majority party lost a cloture vote on something that they consider to be very important, then they could simply raise a point of order and say, actually, it takes a majority to invoke cloture on legislation. And that's not the letter of the Senate rules, but our mandate to govern overrides the letter of the Senate rules. And so from this point forward, because we have this constitutional mandate, it only takes a simple majority to invoke cloture.

GROSS: I don't understand how you could just say that, though.

(Soundbite of laughter)

GROSS: You just say, we're reinterpreting this, and we're going to change it.

Prof. KOGER: Well, the trick is to not think of this as law. I mean, we use some of the vocabulary of law, like precedents and rules and so forth. But at the end of the day, it's politics. These are politicians. They have to get reelected, and they're supposed to be governing us. And that's the underlying thing.

The rules are there to help politicians govern this country, and if the rules are getting in the way, then it is the prerogative - some might even say the mandate of politicians - to reinterpret the rules so they can govern effectively.

GROSS: But that can't be easy, to just say we're the majority party, so we're going to reinterpret the rules now because we have a mandate.

Prof. KOGER: The constraint on politicians' ability to do that is politics. If they go back to - if the majority party did that and then they went back to their constituents and said here's what I did, and they said: Really? That's a transformation of the way we thought the political system worked, and I'm outraged. Well, then they'd pay a heavy political price for that.

And so if Democrats are confident in what they're doing and they believe that they have a mandate to follow through on it, then they could take the risk of, you know, imposing a new interpretation of how the Senate ought to work.

But that is a risk, I mean, and it would be a political risk, that they might lose elections and be discredited because of it.

GROSS: Now, Democratic Senator Tom Harkin of Iowa wants to change the filibuster rules. How does he want to change them?

Prof. KOGER: What he wants to do is enact a new rule that the threshold for cloture decreases by three votes every time you vote on a particular proposal.

So say there's a health care bill on the floor, and the first vote to impose cloture on it fails because there isn't 60 votes. Well, then the next - the second time you vote on the same issue, it would be 57, then 54, then 51. Harkin proposed the same thing back in 1995, with Joe Lieberman as his cosponsor.

GROSS: So the logic of this is that eventually, over time, if there's 51 votes, if there's just, like, a majority of votes, then you can actually vote on the bill.

Prof. KOGER: That is the intent of the rule. I mean, my personal opinion is it's a really misguided proposal because it doesn't take seriously how senators will behave if the rule is adopted.

If I was a senator and the rule was adopted and I was, say, in the minority, I would just filibuster everything: The approval of the journal in the morning, every bill to rename post offices, the motion to adjourn at night. Filibuster everything and force them to vote on everything. And that would be so annoying and take up so much time that eventually, the majority would come around and negotiate with me to stop tying up the Senate - even if, in theory, a majority could shut me up.

GROSS: Although right now it's the Democrats who are the targets of filibusters, there are leading Democrats who are against changing the filibuster rules, including the Senate leader, Harry Reid. So what are their arguments against ending the filibuster, even though right now, they're the targets of it?

Prof. KOGER: Right. A lot of my research has been on this question. I mean, what is it - if senators can change the rules, why haven't they done so in the past? And, I mean, to summarize, the three main benefits I think they get out of it is that there is - you know, when legislation does pass, it does tend to be moderate and bipartisan. And in particular, what that means is that you don't have one faction of the majority party that is able to, you know, convince or coerce or threaten the rest of the majority party into passing legislation that privately, many of them oppose.

A second thing is that, as I mentioned earlier, that the ability of the minority party to filibuster does help guarantee some degree of deliberation in the Senate - and I just mean, you know, the ability to give speeches and offer amendments.

And for senators, I think there's some institutional pride in that. I mean, they watch the legislation going through the House, and it's just ram-rodded through. And they can take some pride in the fact that in the Senate, you actually get to debate and think about some of these things before you vote on them.

And the third thing is that as individuals, senators gain a lot from the system because they can have a lot of influence on the things that they care about that few other people care about. They can block a nomination of somebody that they really despise. They can force the Senate to vote on some amendment that's mostly important to them. And so as entrepreneurs, they're much more successful and influential because there's a system that gives a lot of power to every member of the legislature.

GROSS: Greg Koger, thank you so much for talking with us.

Prof. KOGER: Thank you for having me on.

GROSS: Greg Koger is the author of the forthcoming book "Going to the Mattresses: The History of Filibustering in Congress." He's an assistant professor of political science at the University of Miami. I'm Terry Gross, and this is FRESH AIR.

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