The most powerful force upholding the Democratic Party’s remaining attachment to the filibuster is nostalgia for the old days. Ironically, that nostalgia is for an era in which the filibuster was rare. At times, old-school Democratic senators appear not to realize that the old Senate they revere operated by a different set of rules.
The contradiction was brought into especially sharp relief by Dianne Feinstein yesterday. Asked about the filibuster by Forbes, she replied, “I’m giving it thought … I managed to pass the first assault-weapons bill. So it hasn’t been an impediment, that I have seen. Now somebody, for their bill, may find different.”
This is indeed an illuminating example. But not in the way Feinstein thinks.
The first assault-weapons ban passed in 1994, by a Senate vote of 52-48. How, you might ask, could a bill pass with 52 votes, when the Senate only permits certain categories of votes (budget bills, judges) to pass with a majority, and subjects the rest to a supermajority?
The answer is that the filibuster used to be applied rarely, as an expression of unusually strong objections to the majority party’s work. Medicare ultimately attracted supermajority support, but its advocates worked off the calculation that they only needed 50 votes for passage. During most of the 20th century, it was customarily reserved for blocking civil-rights bills. (This old assumption, that the South deserved a special tool to preserve white supremacy, is the reason the filibuster can be described as a Jim Crow relic.)
Toward the end of the 20th century, that began to change. The filibuster stopped being a rarely used expression of unusually strong opposition, and became a routine supermajority requirement.
The Senate was in the process of this transformation when Feinstein’s assault-weapons ban passed in 1994. It was still possible then to pass a bill through the chamber with fewer than 60 votes, if the minority party simply didn’t care enough to mount a filibuster.
One measure of the change is that, after the 2012 Sandy Hook shootings, Republican Pat Toomey and Democrat Joe Manchin crafted a modest bipartisan bill to tighten up background checks on gun purchases, a goal that commands roughly 90 percent public approval. That bill got 54 Senate votes, two more than Feinstein’s 1994 assault-weapons ban. But it failed, because Republicans filibustered it.
Feinstein cites her nearly three-decade-old bill as evidence the filibuster “hasn’t been an impediment.” She does allow that other senators may feel differently, but she seems to attribute the difference to personal idiosyncrasies. (“Now somebody, for their bill, may find different.”)
Well, perhaps Feinstein is just much more skilled at negotiating bipartisan agreements than Joe Manchin is. Or maybe the system Feinstein dimly remembers has changed completely without her realizing it.