A Critique of the Senate Filibuster

Famously, the U.S. Senate is called the more deliberative of the two national legislative bodies. But the filibuster as practiced today is not about deliberation. Deliberation is a good thing. Instead, the modern silent filibuster fosters legislative paralysis.
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The Electoral College is provided for in the United States Constitution. The filibuster is not. In fact, the word doesn't appear in any of our founding documents. Its derivation is from the Spanish filibustero, meaning "pirate" or "freebooter." In the legislative context, a filibuster is the use of delaying tactics to block legislation. It is a mechanism available only in the Senate. As political scientist Jean Edward Smith has pointed out, "It is now possible for the senators representing 34 million people who live in the 21 least populous states - a little more than 11 percent of the nation's population - to nullify the wishes of the representatives of the remaining 88% of Americans."

The right to extended debate came about quite by accident. In 1789, the first U.S. Senate adopted rules allowing the body to "move the previous question," thereby ending debate and proceeding to a vote. In 1806, outgoing Vice President Aaron Burr argued that the previous question motion had been used so sparingly up to then that it should be eliminated. The Senate agreed, and so the potential for a filibuster came into being. Without a previous question motion, the Senate left itself with no way to limit debate short of gaining unanimous consent.

One of the Senate's earliest filibusters took place in 1841 when the Democratic minority tried to prevent the Senate taking up a bank bill authored by Henry Clay. After a long and protracted debate, Clay threatened to change the Senate rules to allow the majority to act. But Thomas Hart Benton and John C. Calhoun denounced the attempt by Clay to stifle debate. Clay ultimately conceded defeat.

It was not until 1917 that the Senate developed a way of shutting down dilatory tactics of an obstreperous minority. It is called the cloture rule. During the closing days of the session that year, a group of isolationist senators who opposed the entry of the United States into World War I filibustered a bill which would have allowed President Wilson to arm U.S. merchant ships. The President denounced them as a "little group of willful men" and called on the Senate to change its rules.

During the floor debate which followed, Senator Thomas J. Walsh (D-MT) opined that the Senate, like the House, had no rules to govern it at the start of each session and must adopt new rules pursuant to Article I, Section 5 of the Constitution. That section provides that the Senate has the power to "...determine the Rules of its Proceedings." In an environment where nobody could predict what would happen next and both sides fearing the worst outcome, the parties got together to negotiate a cloture rule which was embodied in Rule XXII of the Standing Rules of the Senate. It provided that a 2/3 vote of all senators could cut off debate.

From the late 1920s to the late 1960s, the filibuster became associated almost entirely with the struggle over Civil Rights. Defeated during that time were anti-lynching bills, anti-poll tax bills, and anti-discrimination bills - all aimed to protect and provide equality to blacks in the south. In fact, the longest filibuster ever delivered was in opposition to the Civil Rights Act of 1959 by Strom Thurmond ((D-SC). It lasted 24 hours and 18 minutes and would have gone on longer had Thurmond's doctors not forced him to quit out of concern for kidney damage. In an attempt to end that debate, majority leader Lyndon Johnson (D-TX) brokered a compromise with Senator Richard Russell (D-GA) which resulted in the following two changes to Rule XXII: 1. Cloture would be possible on the vote of 2/3 of members present and voting; and 2. The rules would include a statement that the rules of the Senate shall continue in force, at all times, except as amended by the Senate.

Most would agree in hindsight that Senator Russell got the better deal. By agreeing to the second point, Lyndon Johnson had in effect conceded the argument made by Senator Walsh 42 years earlier.

In 1975, the filibuster issue was revived by post-Watergate Democrats who became frustrated by their seeming inability to enact meaningful campaign finance laws. Senator James Allen (D-AL) blocked these efforts with a series of filibusters. Senator Walter Mondale (D-MN) urged his colleagues to eliminate the cloture rule. He and other Democrats were able to break Senator Allen's filibuster with a little help from an unlikely source -- Vice President Nelson Rockefeller (who was presiding officer at the time). He sided with the Democrats, who had moved that Senator Allen was out of order. When Allen appealed the ruling to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were in the midst of debate about the "nuclear option," offered up a compromise. On March 7, 1975, the Senate voted 56-27 to amend Rule XXII to provide for cloture by 3/5 of all members from the previous 2/3 of members present and voting. Thus came about the 60 member threshold that exists to this day.

The story took a turn for the worse when, in the early 1970s, Senate majority leader Mike Mansfield - intending to dilute the power of the minority - inadvertently made filibustering easier.

The extended speechifying made famous by Strom Thurmond and Huey Long before him has been replaced by what legal scholars Erwin Chemerinsky and Catherine Fisk have dubbed the "stealth" filibuster. Its genesis was the early 1970s, when it became apparent to then majority leader Mike Mansfield (D-MT) that delaying tactics such as objections to unanimous consent motions; forcing the previous day's journal to be read aloud in its entirety; suggesting the absence of a quorum; and - of course - extended periods of time holding the floor were causing the Senate to fall behind in doing the people's business. (Contrary to popular legend, the workload of the modern-day Senate is substantial. Most members could make a convincing argument for the proposition that they really don't have time to wait out a filibuster.) In response, Mansfield devised a "two-track" system where the mornings were devoted to filibustering and the afternoons to pressing business. With liberal Democrats taking the floor to argue against further funding of the Vietnam War and in favor of stripping right-to-work provisions out of federal labor laws, there was bipartisan support for his efforts. While this dual system may have solved Mansfield's problems over the short term, over the long term it has proved to be disastrous. An explanation for this statement is in order.

Rather than dividing mornings and afternoons between filibustered bills and other matters, over time the Senate has come to a point in time where it seldom takes up legislation unless the majority leadership has counted sixty votes. In other words, a credible threat that 41 senators won't vote for cloture is enough to keep a bill off the floor on most occasions. Boston College historian Julian Zeliger puts it this way: "Mansfield's measure, which was intended to promote efficiency, inadvertently encouraged filibusters by making them politically costless and painless."

One way for a senator to let her colleagues know that she intends to pursue a filibuster is to place a "hold" on a bill, thereby letting her colleagues know she will not accede to unanimous consent. Congressional scholar Norman Ornstein has noted that in the modern Senate holds "are routinely employed - often anonymously - against bills or people the senator has nothing against, but wants to take as hostages for leverage on something utterly unrelated to the hold itself."

If members actually had to hold the floor as in the days of Senators Long and Thurmond, most filibusters would end quickly. The reason is that we live in an age where this public disgust over partisan gridlock. Public airing of the old-fashioned filibuster on C-Span and elsewhere would not be something most Senators would want the public to see. In the current climate, it would be sound political strategy for Senate Majority leader Harry Reid to force the Republicans to engage in extended debate on a major issue such as health care reform. Best of all, no change in Senate rules would be required.

Few screen images are more memorable than the filibuster waged by Jimmy Stewart in Mr. Smith Goes to Washington. The image of the naive newcomer holding the Senate floor until he collapses in fatigue endures as a portrait of how government should work. In the process, he shames the compromised and corrupt majority into submission. But that is not the filibuster of today.

Famously, the U.S. Senate is called the more deliberative of the two national legislative bodies. But the filibuster as practiced today is not about deliberation. Deliberation is a good thing. Instead, the modern silent filibuster fosters legislative paralysis. Even bills that have overwhelming support are often slowed down by extended debate. It encourages rampant individualism and obstructionism and has impaired the Senate's ability to meet its constitutional responsibilities.

In the Senate's most recent session, 112 filibusters were mounted. Fifty-one were successful. And who were they mounted by? The very same folks who are now telling us that health care reform shouldn't be achieved through the budget reconciliation process (which would lower the threshold for passage to 51 votes, thereby circumventing the filibuster). Senator Judd Gregg (R-NH), in particular, worries that it will constitute "an act of violence" on senate collegiality and comity. Mr. Gregg and some of his Republican colleagues have short memories. When they controlled the Senate earlier in the decade, they had no problem using this very same process to enact George Bush's tax cuts in 2001 and 2003. And it was Mr. Gregg who led the charge.

Of course, with the recent defection of Senator Arlen Specter into the ranks of the Democrats, only the seating of Al Franken is holding up the attainment of that magic number: 60. Specter will join other centrist Democrats such as Ben Nelson of Nebraska, Blanche Lincoln of Arkansas, and Kent Conrad of North Dakota. Of course, one or more of them may not see eye to eye with their more liberal colleagues. So, having the ability to cut off debate doesn't mean that on all issues and votes the Senate will be filibuster-proof. Unlike the House of Representatives, independence in the Senate is an honored tradition.

Should Franken be seated soon, as seems likely, it will be truly historic because achieving cloture has been a difficult proposition. Since the rule was created in 1917, it was only during seven of the twelve years of the Roosevelt Administration that the Senate had more than 67 senators, enough to cut off debate. And that, of course, was at the height of the New Deal. Only once since the 60% cloture threshold was set in 1975 have Senate Democrats attained that majority. That was in 1977-78.

In the past, both Republicans and Democrats have opposed ending the filibuster completely, but an opportunity to significantly change Senate Rule XII may be in the offing, perhaps by reducing the threshold for cloture to 60% of those present and voting. Whether real reform comes about will depend on the importance of the particular issue under consideration and the public outcry that accompanies the Senate's failure to act. At least, that's what history tells us.

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