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January 26, 2010

Filibuster Under Fire

By Joseph Smith
Reflecting frustration among the Democrats over their inability to pass a health care reform bill, there has been a clamor on the left for the elimination of the filibuster rule in the Senate.

“God didn’t create the filibuster,” Rep. Barney Frank (D-Mass.) pronounced last week. Paul Krugman, writing in the New York Times, calls the Senate “ominously dysfunctional,” due mainly in Krugman’s eyes to the sixty-vote filibuster rule. Another Times op-ed terms the filibuster “unconstitutional.”

A recent Politico column calls the filibuster “the single greatest threat to the Democratic Party’s Progressive agenda.” And the Huffington Post notes that “a coalition of progressive groups and labor organizations have begun laying out a potential campaign to pressure lawmakers to revamp the filibuster rules.”

On the legislative front, The Hill reports that Senators Tom Harkin (D-IA) and Joe Lieberman (I-CT) plan to introduce a bill in the next few weeks to effectively eliminate the filibuster as currently known:

60 votes would still be necessary to cut off debate on an initial procedural motion. If senators failed to reach 60 votes, a second vote would be possible two days later that would require only 57 votes to cut off debate. If that also failed, a third vote two days after that would require 54 votes to end debate. A fourth vote after two more days would require just 51 votes.

Such a bill would be unlikely to pass, as Republicans would be needed to reach the 67 votes needed to change Senate rules, and both parties value the long Senate tradition of filibuster and delay when they are the minority.

This is not the first time the current filibuster rule has been attacked. In 2005, with the Republicans holding a 55-seat majority and threatening to use procedural votes to cut off a protracted and rancorous debate on Bush judicial nominees, a compromise was reached that left the filibuster precedent intact.

Senate Majority Leader Harry Reid (D-NV), reflecting partly on his prior experience as Minority Leader at the time, said in his recent book,

It was just a matter of time before a Senate leader who couldn’t get his way on something moved to eliminate the filibuster for regular business. ... And that, simply put, would be the end of the United States Senate ... A filibuster is the minority’s way of not allowing the majority to shut off debate, and without robust debate, the Senate is crippled.

And in 1994, with the Republicans in control, Harkin and Lieberman (as a Democrat at the time) introduced legislation identical to what they are now proposing, to make the Senate “more productive.” it was defeated 76 to 19, with both Republicans and Democrats voting to keep the filibuster tool for another day.

President Obama spoke out as Senator in 2005 against Republican attempts to eliminate the filibuster, and White House Press Secretary Robert Gibbs said a few weeks ago that he had not heard of  “discussion here about support for changing those rules.”

The Senate rule on filibusters (Rule XXII) reads in part:
Is it the sense of the Senate that the debate shall be brought to a close? And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn ...  

The rule then goes on to enumerate the regulations for bringing the matter to a vote.
Thomas Jefferson developed his Manual of Parliamentary Practice to fill the need for a set of rules to run the Senate in his role as vice president:

The new vice president admired the British House of Commons' rules of procedure because, in the words of a former Speaker, they provided "a shelter and protection to the minority, against the attempts of power. ... A Senate in which the Federalists had a two-to-one majority over the Republicans accentuated Jefferson's fears and made him particularly sensitive to the preservation of minority rights.

Jefferson’s manual and the original rules of the Senate allowed a simple majority to end debate, but the Senate rules were amended in 1806 to allow unlimited debate, at Aaron Burr’s recommendation following his term as vice president.

The Senate’s tradition of allowing delaying tactics and unlimited debate meant that any Senator had the right to speak as long as necessary and could thereby delay or prevent a vote on a bill. Various attempts were made in the 19th century to change the rules to allow the majority to close debate, most notably by Kentucky Senator Henry Clay in 1841. 

Eventually, in 1917, President Woodrow Wilson successfully pushed the Senate to adopt a rule allowing “cloture” with a two-thirds majority. Along with Jimmy Stewart’s movie version of Senator Jefferson Smith, notable filibusters since then include Sen. Huey Long (D-LA) in 1935 and Sen. Strom Thurmond (D- SC), who filibustered for a record twenty-four hours against the Civil Rights Act of 1957.

Cloture was seldom reached under the two-thirds rule, with the major exception being in the passage of the Civil Rights Act of 1964 over the filibuster of Southern senators. In 1975, the Democrats, with a majority of 61 plus one Independent, succeeded in changing the cloture requirement in a compromise that strengthened the hand of the majority from two-thirds of those senators “present and voting” to three-fifths of those senators “duly chosen and sworn.” Thus, 60 votes for cloture would be necessary regardless of whether every senator voted, unless a Senate seat is vacant.

The Senate web site relates the Founders’ view of the Senate:

Writing to Thomas Jefferson, who had been out of the country during the Constitutional Convention, James Madison explained that the Constitution's framers considered the Senate to be the great “anchor” of the government. To the framers themselves, Madison explained that the Senate would be a “necessary fence” against the “fickleness and passion” that tended to influence the attitudes of the general public and members of the House of Representatives. George Washington is said to have told Jefferson that the framers had created the Senate to “cool” House legislation just as a saucer was used to cool hot tea.

In contrast to the Founders’ intent and the long heritage of the Senate, there are many on the left who object not only to the filibuster rule but also to what the left terms the “undemocratic” nature of the Senate itself, conveniently forgetting that the Great Compromise of 1787 created the two Houses of Congress and allowed our nation to go forward. The views of the left invite the tyranny of the majority, which the Founders were so careful to guard against.  

While “God didn’t create the filibuster,” it is as vital now as at any time in our history that Senate rules, including the filibuster, remain “a shelter and protection to the minority, against attempts of power.”
on "Filibuster Under Fire"