[EL] ELB News and Commentary 1/25/21

[Rick Hasen]

Blockbuster WSJ Report: “Trump Pressed Justice Department to Go Directly to Supreme Court to Overturn Election Results”<https://electionlawblog.org/?p=120636>
Posted on January 25, 2021 8:41 am<https://electionlawblog.org/?p=120636> by Rick Hasen<https://electionlawblog.org/?author=3>

Jess Bravin and Sadie Gurman for WSJ:<https://www.wsj.com/articles/trump-pressed-to-change-justice-department-leadership-to-boost-his-voter-fraud-claims-11611434369>

In his last weeks in office, former President Donald Trump considered moving to replace the acting attorney general with another official ready to pursue unsubstantiated claims of election fraud<https://www.wsj.com/articles/trump-lawyers-face-rebukes-over-election-fraud-claims-11610458283?mod=article_inline>, and he pushed the Justice Department to ask the Supreme Court to invalidate President Biden’s victory, people familiar with the matter said.

Those efforts failed due to pushback from his own appointees in the Justice Department, who refused to file what they viewed as a legally baseless lawsuit in the Supreme Court. Later, other senior department officials threatened to resign en masse should Mr. Trump fire then-acting Attorney General Jeffrey Rosen, according to several people familiar with the discussions.

Senior department officials, including Mr. Rosen, former Attorney General William Barr and former acting Solicitor General Jeffrey Wall refused to file the Supreme Court case, concluding that there was no basis to challenge the election outcome<https://www.wsj.com/articles/trump-campaign-files-more-election-challenges-in-wisconsin-michigan-11606849219?mod=article_inline> and that the federal government had no legal interest in whether Mr. Trump or Mr. Biden won the presidency, some of these people said. White House counsel Pat Cipollone and his deputy, Patrick Philbin, also opposed Mr. Trump’s idea, which was promoted by his outside attorneys, these people said.

“He wanted us, the United States, to sue one or more of the states directly in the Supreme Court,” a former administration official said. “The pressure got really intense” after a lawsuit Texas filed in the Supreme Court against four states Mr. Biden won was dismissed<https://www.wsj.com/articles/trump-campaign-loses-wisconsin-election-lawsuit-11607713668?mod=article_inline> on Dec. 11, the official said. An outside lawyer working for Mr. Trump drafted a brief the then-president wanted the Justice Department to file, people familiar with the matter said, but officials refused….

Before the Texas suit was filed, a group of Republican state attorneys general spoke with Mr. Barr about getting the Justice Department to back the claim, particularly if the Supreme Court asked for the department’s views on the case, people familiar with the discussions said.

Mr. Barr consulted with Mr. Wall, who is the government’s advocate before the Supreme Court. Mr. Wall told Mr. Barr that Texas’s lawsuit was likely to fail because the state lacked legal standing to challenge other states’ administration of their own laws, the people said, accurately anticipating the grounds the Supreme Court ultimately cited in dismissing the case.

Mr. Barr told the Republican officials that the department couldn’t be counted on to support their legal claim if the Supreme Court sought its opinion, these people said.

Representatives of Mr. Paxton and the Republican Attorneys General Association couldn’t immediately be reached.

After the Texas case was dismissed on Dec. 11, Mr. Trump began pushing for the Justice Department to file its own lawsuit against the states directly in the Supreme Court, the people said. Frustrated that his wishes weren’t being implemented, Mr. Trump at one point planned to bypass the attorney general and telephone Mr. Wall directly, these people said.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Jeffrey Clark Was Considered Unassuming. Then He Plotted With Trump.”<https://electionlawblog.org/?p=120634>
Posted on January 25, 2021 8:36 am<https://electionlawblog.org/?p=120634> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT profile<https://www.nytimes.com/2021/01/24/us/politics/jeffrey-clark-trump-election.html>:

It was New Year’s Eve, but the Justice Department’s top leaders had little to celebrate as they discussed Jeffrey Clark, the acting head of the civil division, who had repeatedly pushed them to help President Donald J. Trump undo his electoral loss.

Huddled in the department’s headquarters, they noted that they had rebuked him for secretly meeting with Mr. Trump, even as the department had rebuffed the president’s outlandish requests for court filings and special counsels, according to six people with knowledge of the meeting. No official would host a news conference to say that federal fraud investigations cast the results in doubt, they told him. No one would send a letter making such claims to Georgia lawmakers.

When the meeting ended not long before midnight, Acting Attorney General Jeffrey A. Rosen hoped that the matter was settled, never suspecting that his subordinate would secretly discuss the plan for the letter with Mr. Trump, and very nearly take Mr. Rosen’s job, as part of a plot with the president to wield the department’s power to try to alter the Georgia election outcome.

It was clear that night, though, that Mr. Clark — with his willingness to entertain conspiracy theories about voting booth hacks and election fraud — was not the establishment lawyer they thought him to be. Some senior department leaders had considered him quiet, hard-working and detail-oriented. Others said they knew nothing about him, so low was his profile. He struck neither his fans in the department nor his detractors as being part of the Trumpist faction of the party, according to interviews.

The department’s senior leaders were shocked when Mr. Clark’s machinations came to light. They have spent recent weeks debating how he came to betray Mr. Rosen, his biggest champion at the department, and what blend of ambition and conviction led him to reject the results of the election and embrace Mr. Trump’s claims, despite all evidence to the contrary, including inside the department itself.

The plot devised by Mr. Clark and Mr. Trump would have ousted Mr. Rosen and used the Justice Department to pressure lawmakers in Georgia to overturn the state’s election results. But Mr. Trump ultimately decided against firing Mr. Rosen after top department leaders pledged to resign en masse.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Department of Justice<https://electionlawblog.org/?cat=26>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Dominion voting machine firm sues Giuliani for more than $1.3 billion”<https://electionlawblog.org/?p=120632>
Posted on January 25, 2021 8:29 am<https://electionlawblog.org/?p=120632> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/dominion-voting-systems-giuliani-lawsuit/2021/01/25/b0fc3db4-5f14-11eb-afbe-9a11a127d146_story.html>:

Dominion Voting Systems filed a defamation lawsuit Monday seeking more than $1.3 billion from Rudolph W. Giuliani, the lawyer for former president Donald Trump who played a key role in promoting the falsehood that the 2020 election was rigged.

The 107-page complaint<https://www.washingtonpost.com/context/dominion-voting-systems-defamation-lawsuit-against-lawyer-rudy-giuliani/91600fbd-9526-46ef-b951-b6f9b89950fc/?itid=lk_inline_manual_14&itid=lk_inline_manual_3>, filed in federal court in D.C., cites dozens of statements Giuliani made about Dominion — on Twitter, in appearances on conservative media shows and on his own podcast — to promote the “false preconceived narrative” that the election was stolen from Trump.

That “Big Lie” not only damaged Dominion’s reputation and business and led to death threats against its employees, but also laid the groundwork for hundreds of people to storm the U.S. Capitol on Jan. 6, the complaint says. Five people died as a result of the attack, and dozens of law enforcement officials were injured.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“In wake of 2020 election, state GOP lawmakers aim to change election laws”<https://electionlawblog.org/?p=120630>
Posted on January 25, 2021 8:26 am<https://electionlawblog.org/?p=120630> by Rick Hasen<https://electionlawblog.org/?author=3>

CBS News reports.<https://www.cbsnews.com/news/2020-election-republicans-state-election-laws/>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Pennsylvania Lawmaker Played Key Role in Trump’s Plot to Oust Acting Attorney General”<https://electionlawblog.org/?p=120628>
Posted on January 25, 2021 8:23 am<https://electionlawblog.org/?p=120628> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/01/23/us/politics/scott-perry-trump-justice-department-election.html>

When Representative Scott Perry joined his colleagues in a monthslong campaign to undermine the results of the presidential election, promoting “Stop the Steal” events and supporting an attempt to overturn millions of legally cast votes, he often took a back seat to higher-profile loyalists in President Donald J. Trump’s orbit.

But Mr. Perry, an outspoken Pennsylvania Republican, played a significant role in the crisis that played out at the top of the Justice Department this month, when Mr. Trump considered firing the acting attorney general<https://www.nytimes.com/2021/01/22/us/politics/jeffrey-clark-trump-justice-department-election.html> and backed down only after top department officials threatened to resign en masse.

It was Mr. Perry, a member of the hard-line Freedom Caucus, who first made Mr. Trump aware that a relatively obscure Justice Department official, Jeffrey Clark<https://www.nytimes.com/2021/01/24/us/politics/jeffrey-clark-trump-election.html>, the acting chief of the civil division, was sympathetic to Mr. Trump’s view that the election had been stolen, according to former administration officials who spoke with Mr. Clark and Mr. Trump.

Mr. Perry introduced the president to Mr. Clark, whose openness to conspiracy theories about election fraud presented Mr. Trump with a welcome change from the acting attorney general, Jeffrey A. Rosen, who stood by the results of the election and had repeatedly resisted the president’s efforts to undo them.

Mr. Perry’s previously unreported role, and the quiet discussions between Mr. Trump and Mr. Clark that followed, underlined how much the former president was willing to use the government to subvert the election, turning to more junior and relatively unknown figures for help as ranking Republicans<https://www.nytimes.com/2020/12/15/us/politics/mitch-mcconnell-congratulates-biden.html> and cabinet members rebuffed him<https://www.nytimes.com/2020/12/01/us/politics/william-barr-voter-fraud.html>.

Mr. Perry’s involvement is also likely to heighten scrutiny of House Republicans who continue to advance Mr. Trump’s false and thoroughly debunked claims of election fraud<https://www.nytimes.com/2020/11/10/us/politics/voting-fraud.html>, even after President Biden’s inauguration this week<https://www.nytimes.com/2021/01/20/us/politics/biden-president.html> and as Congress prepares for an impeachment trial<https://www.nytimes.com/2021/01/22/us/politics/senate-trump-impeachment-trial-delay.html> that will examine whether such talk incited the Capitol riot<https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Chronicling Trump’s 10 worst abuses of power”<https://electionlawblog.org/?p=120626>
Posted on January 25, 2021 8:17 am<https://electionlawblog.org/?p=120626> by Rick Hasen<https://electionlawblog.org/?author=3>

#1 on Marshall Cohen of CNN’s list<https://www.cnn.com/2021/01/24/politics/trump-worst-abuses-of-power/index.html>? Subverting the 2020 Election. Number #2: Inciting an insurrection.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Follow the Money Behind the Capitol Riot”<https://electionlawblog.org/?p=120624>
Posted on January 25, 2021 7:50 am<https://electionlawblog.org/?p=120624> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs<https://www.brennancenter.org/our-work/analysis-opinion/follow-money-behind-capitol-riot>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Chinese parts, hidden ownership, growing scrutiny: Inside America’s biggest maker of voting machines”<https://electionlawblog.org/?p=120622>
Posted on January 25, 2021 7:49 am<https://electionlawblog.org/?p=120622> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News<https://www.nbcnews.com/news/all/chinese-parts-hidden-ownership-growing-scrutiny-inside-america-s-biggest-n1104516>:

 Just off a bustling interstate near the border between Nebraska and Iowa, a 2,800-square-foot American flag flies over the squat office park that is home to Election Systems & Software LLC.

The nondescript name and building match the relative anonymity of the company, more commonly known as ES&S, which has operated in obscurity for years despite its central role in U.S. elections. Nearly half of all Americans<https://publicpolicy.wharton.upenn.edu/live/files/270-the-business-of-votin> who vote in the 2020 election will use one of its devices.

That’s starting to change. A new level of scrutiny of the election system, spurred by Russia’s interference in the 2016 election, has put ES&S in the political spotlight. The source of the nation’s voting machines has become an urgent issue because of real fears that hackers, whether foreign or domestic, might tamper with the mechanics of the voting system.

That has led to calls for ES&S and its competitors, Denver-based Dominion Voting Systems and Austin, Texas-based Hart Intercivic, to reveal details about their ownership and the origins of the parts, some of which come from China, that make up their machines.

But ES&S still faces questions about the company’s supply chain and the identities of its investors, although it has said it is entirely owned by Americans. And the results of its government penetration tests, in which authorized hackers try to break in so vulnerabilities can be identified and fixed, have yet to be revealed.
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Posted in voting technology<https://electionlawblog.org/?cat=40>


“In ‘thousands of complaints’ about Wisconsin election, few that could be substantiated”<https://electionlawblog.org/?p=120620>
Posted on January 25, 2021 7:47 am<https://electionlawblog.org/?p=120620> by Rick Hasen<https://electionlawblog.org/?author=3>

Wisconsin State Journal:<https://madison.com/wsj/news/local/govt-and-politics/elections/in-thousands-of-complaints-about-wisconsin-election-few-that-could-be-substantiated/article_e7f37ef6-4072-536c-aea6-4427de4fcc99.html>

In December, with then-President Donald Trump continuing to falsely claim that massive fraud and other voting irregularities had denied him a second term, top Republicans in the Wisconsin Legislature said they were reviewing “thousands of complaints”<https://legis.wisconsin.gov/assembly/63/vos/media/news-updates/elections-committee-hearing-set-for-next-week> about the Nov. 3 election.

There were indeed thousands of complaints in the emails sent between Nov. 3 and Dec. 8 to lawmakers investigating the election.

The majority of them, however, were mass-generated form letters making nonspecific claims about alleged irregularities, a right-wing fraud-finding effort and a clip from Fox’s Sean Hannity show. Others implored Republican lawmakers to overturn an election they were convinced was rigged, even though local, state and national officials have confirmed its integrity.

The Wisconsin State Journal was able to identify just 28 allegations of election fraud or other irregularities that were specific enough to attempt to verify, but could only partially substantiate one, involving 42 votes. Interviews with dozens of prosecutors, election officials and people who lodged complaints made clear that most, if not all, of the allegations could be chalked up to hearsay or minor administrative errors.

Republican Rep. Ron Tusler said the Assembly Committee on Campaigns and Elections, which he chaired last session, has so far been able to substantiate only one case of potential voter fraud in the Nov. 3 election: A Cedarburg woman was charged in November after she allegedly submitted an absentee ballot for her dead partner.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“State Republicans push new voting restrictions after Trump’s loss”<https://electionlawblog.org/?p=120618>
Posted on January 25, 2021 7:45 am<https://electionlawblog.org/?p=120618> by Rick Hasen<https://electionlawblog.org/?author=3>

Zach Montellaro for Politico:<https://www.politico.com/news/2021/01/24/republicans-voter-id-laws-461707>

Republican legislators across the country are preparing a slew of new voting restrictions in the wake of former President Donald Trump’s defeat.

Georgia will be the focal point of the GOP push to change state election laws, after Democrats narrowly took both Senate seats there and President Joe Biden carried the state by an even smaller margin. But state Republicans in deep-red states and battlegrounds alike are citing Trump’s meritless claims of voter fraud in 2020 — and the declining trust in election integrity Trump helped drive — as an excuse to tighten access to the polls.

Some Republican officials have been blunt about their motivations: They don’t believe they can win unless the rules change. “They don’t have to change all of them, but they’ve got to change the major parts of them so that we at least have a shot at winning,” Alice O’Lenick, a Republican on the Gwinnett County, Ga., board of elections in suburban Atlanta, told the Gwinnett Daily Post<https://www.gwinnettdailypost.com/local/gwinnett-elections-boards-new-chairwoman-wants-limits-on-no-excuse-absentee-voting-voter-roll-review/article_7df1c274-5715-11eb-a31d-dfa23b30ec62.html> last week. She has since resisted calls to resign<https://www.ajc.com/news/atlanta-news/republican-gwinnett-elections-chair-resists-calls-to-step-down/CHUAZ4BPPZAJFKHSY6H2AOL3TE/>.

The chair of the Texas Republican Party has called on the legislature there to make “election integrity” the top legislative priority in 2021, calling, among other things, for a reduction in the number of days of early voting. Jason Miller, a top Trump adviser, told the conservative site Just The News<https://justthenews.com/podcasts/just-news-am-carrie-sheffield/jason-miller-trumps-next-stepsjason-miller-trumps-next-steps)> that Trump plans to remain involved in “voting integrity” efforts, keeping the issue at the top of Republicans’ minds. And VoteRiders, a nonprofit group that helps prospective voters get an ID if they need one to cast a ballot, said it is expecting a serious push for new voter ID laws in at least five states, while North Carolina could potentially implement new voter ID policies that have been held up in court….

But Georgia is unique among the closest 2020 battleground states in that Republicans control the governorship and both houses of the state legislature. That boxes out Democrats, who are broadly opposed to voter ID laws or other proposed electoral changes, like limiting absentee voting. Democratic governors in states with Republican legislatures, like Michigan, Pennsylvania and Wisconsin, could veto changes to election laws if there isn’t bipartisan agreement on what to alter….

In Arizona, another swing state that Biden narrowly carried, Republicans in the state Senate have advanced legislation that would result in more automatic recounts<https://tucson.com/news/local/arizona-gop-lawmakers-advance-changes-to-election-laws-in-wake-of-trumps-loss/article_6b320c76-1875-5c90-9be4-ded4eab00776.html>. Some Republicans also introduced legislation to abolish the state’s permanent early voting list — which a supermajority of voters are registered for — although a cosponsor of the legislation told the Arizona Republic<https://www.azcentral.com/story/news/politics/legislature/2021/01/19/peoria-rep-kevin-payne-bill-eliminate-arizona-early-voting-list/4220309001/>, “It can’t pass and I don’t want to waste my time with it.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Trump Wants Back on Facebook. This Star-Studded Jury Might Let Him.”<https://electionlawblog.org/?p=120616>
Posted on January 25, 2021 7:36 am<https://electionlawblog.org/?p=120616> by Rick Hasen<https://electionlawblog.org/?author=3>

Ben Smith NYT column<https://www.nytimes.com/2021/01/24/business/media/trump-facebook-oversight-board.html>.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“‘Dark Money’ Helped Pave Joe Biden’s Path to the White House”<https://electionlawblog.org/?p=120614>
Posted on January 25, 2021 7:31 am<https://electionlawblog.org/?p=120614> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg<https://www.bloomberg.com/news/articles/2021-01-23/-dark-money-helped-pave-joe-biden-s-path-to-the-white-house>:

President Joe Biden benefited from a record-breaking amount of donations from anonymous donors to outside groups backing him, meaning the public will never have a full accounting of who helped him win the White House.

Biden’s winning campaign was backed by $145 million in so-called dark money donations, a type of fundraising Democrats have decried for years. Those fundraising streams augmented Biden’s $1.5 billion haul, in itself a record for a challenger to an incumbent president.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“With Control Of Congress, Democrats Aim To Address Voting Rights”<https://electionlawblog.org/?p=120612>
Posted on January 25, 2021 7:24 am<https://electionlawblog.org/?p=120612> by Rick Hasen<https://electionlawblog.org/?author=3>

Miles Parks<https://www.npr.org/2021/01/24/960060852/with-control-of-congress-democrats-aim-to-address-voting-rights> for NPR.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Breaking: SCOTUS Takes No Action in Trump-Related Election Appeals from PA; Next Chance is Next Month<https://electionlawblog.org/?p=120610>
Posted on January 25, 2021 6:46 am<https://electionlawblog.org/?p=120610> by Rick Hasen<https://electionlawblog.org/?author=3>

Today’s Court orders<https://www.supremecourt.gov/orders/courtorders/012521zor_3f14.pdf> make no mention of those cases, even after they have been relisted, making eventual cert grants less likely (though still possible). More likely is that the Court won’t hear the cases, but one or more Justices will write opinions related to the “independent state legislature” doctrine to give a thumb on the scale in future cases.
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The Filibuster and the History of the Senate as a Majoritarian Institution<https://electionlawblog.org/?p=120608>
Posted on January 24, 2021 3:18 am<https://electionlawblog.org/?p=120608> by Richard Pildes<https://electionlawblog.org/?author=7>

Back in 2009, when the issue of abolishing the Senate filibuster was also being discussed, I wrote this piece for the Balkinization blog on the history of the filibuster. Now that this issue is being intensely discussed again, I’m re-posting that piece here:

Before 1917, there was no way to end a Senate filibuster. In that year, the Senate adopted its first “cloture rule,” which enabled a two-thirds majority to end debate. In 1975, that rule was modified to reduced the necessary majority to three-fifths (60%), which is the current practice. But this raises a fascinating question that sheds a great deal of perspective on the modern filibuster: for all the years before 1917, how did the Senate manage to end debate and vote on the merits of legislation? Was the Senate paralyzed? Did intense minorities manage to block a great deal of legislation? How did the Senate’s tradition of “unlimited debate” – unique, as far as I know, among parliamentary bodies in the world – function for most of American history?

The answer lies at the intersection of norms and formal rules that characterize the operation of all representative institutions, such as the Senate. As it turns out, the Senate actually functioned internally as a majoritarian institution throughout its history (the design of the Senate itself, of course, is not majoritarian, given its state-based representational structure). Rules to end filibusters were not needed before 1917 because the majority was able to control effectively the Senate legislative process. Thus, even narrow majorities were able to enact legislation, including controversial legislation. Intense minorities could, of course, filibuster; the effect of these filibusters was to delay legislation. But if the majority was committed to passing the legislation at issue, the bills generally passed. “[L]awmaking in the pre-cloture Senate was generally majoritarian when it came to significant legislation.” So argues the most significant modern book on the subject, Gregory Wawro’s and Eric Schickler’s book, Filibuster: Obstruction and Lawmaking in the U.S. Senate at 19 (2006), from which the information in this post is drawn.

Many mechanisms contributed to enabling the Senate to function as a majoritarian institution, but among the most important was the shadow of the threat, and the understanding, that the majority would re-write the rules to eliminate minority rights if the minority actually obstructed enactment of major legislation. Senators appreciated value in filibustering; that practice revealed important information about how strongly minorities felt about particular legislation or particular provisions. But if the majority had intense preferences for the legislation even in the face of these opposing signals, the majority was understood to have the right to enact its policies – and it was recognized that the majority, if necessary, would enforce that right by changing the Senate’s rules and practices. Faced with this reality, minorities would accede once they had made their point, and important legislation would often be enacted with little more than majority support. In other words, filibusters were means by which minorities tested the strength and intensity of the majority’s commitment; but if the majority was committed, legislation passed. Indeed the coalitions behind major legislation were typically smaller than what became required after 1917 – and that are required today – to approve Senate bills.

Three factors contributed to this underlying dynamic. First, the Senate had a much smaller workload; as a result, a bill’s supporters could afford to keep obstructed bills on the floor for longer periods. There was less opportunity cost to doing so and waiting out a filibuster. Second, it was easier in the past than today for Senate majorities to change the rules of the Senate than it is today; since the practices of the Senate were based less on written rules and more on informal understandings, a simple majority vote could more easily change those practices. For example, to change a formal rule of the Senate – which includes the rules about how to end filibusters, now that those are codified as formal rules of the Senate — requires, under the Senate’s rules, a two-third vote to end debate on the rule change (p.282). Of course, a majority could find ways to overthrow this whole structure by majority vote – but in terms of public perception, it might be far more costly for a majority to be seen as engaging in the “revolutionary” act of ignoring or overriding the formal rules than for the majority simply to change something that had merely been part of the informal practices of the Senate. Third, the relatively small size of the Senate throughout the 19th century sustained shared understanding of the essential dynamic that kept the Senate majoritarian: minorities gave way to determined majorities to avoid having minority rights wiped out more sweepingly. Wawro and Schickler offer much empirical analysis to support their conclusion that the Senate in fact functioned as a majoritarian body before the 20th century.

So if the Senate operated as a majoritarian body for most of American history, why did the Senate decide in 1917 to adopt a rule to end debate, the cloture rule? Wawro and Schickler argue that with the expansion of national government activities by this time, the legislative workload had expanded greatly – thus, filibusters became much more effective because the majority could not longer afford as easily to pay the costs of waiting out filibusters. In addition, they point to the dramatic expansion of the size of the Senate: in the 20 years starting in 1889, the Senate expanded by 30%. In their view, this much larger Senate could no longer sustain informal understandings about the appropriate limits on obstructionism. Hence, the 1917 cloture rule. Paradoxically, the creation of the first formal limit on filibustering signaled how much more common and effective filibustering had started to become – and would continue to become.

I will leave it to others to pursue implications of this history for today’s emerging debates about the filibuster. But this history is, I believe largely unknown and counterintuitive, and as debates over the filibuster heat up, as they inevitably will in our era of highly polarized political parties with virtually no cross-party line voting in the Congress, more people should have access to the deeper historical perspective provided by Wawro’s and Schickler’s important book.
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Rick Hasen
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