"All that is old and already formed can continue to live only if it allows within itself the conditions of a new beginning."
The Filibuster Debate:
Rein in the NukesPosted 11:40 p.m., April 17, 2005
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It is always profoundly interesting to study a controversy where there is right on both sides, though neither can see the right in the other.
-- Gamaliel Bradford,
The Atlantic Monthly,
November 1922
It's interesting, this current business about "nuking the filibuster" that is being spearheaded by Senate Majority Leader Bill Frist--the country's top Republican who doesn't happen to have a desk in the Oval Office.
There is reason to be concerned about the "go nuclear" option against the filibuster, even if it's understandable when people fail to perceive the wisdom of preserving this fortuitous accident of history. For partisan politicians to jabber endlessly in an effort to block a proper up-or-down vote on the Senate floor doesn't exactly seem democratic.
But the filibuster has proven useful as a brake on runaway majority sentiments in the Senate. True, its most famous use--though hardly its only use--was by Southern Democrats to throttle civil rights legislation, a sad fact that Republicans now are eagerly exploiting. (Interesting, indeed, given that the Republican party began absorbing most of those same race-baiting Dixiecrats during the infamous GOP "Southern Strategy" of the 1968 presidential campaign.)
A bit of background for those who need it: The filibuster is a piece of U.S. Senate arcana that allows a minority caucus to debate an issue endlessly to prevent legislation from reaching the floor for a vote. It takes 60 votes out of the 100-member Senate--or "cloture"--to override a filibuster and force a vote.
The current effort by Frist is to create a new "Senate precedent"--in effect, a new interpretation of Senate rules that could change access to the filibuster without actually formally changing Senate rules. This precedent would grant the majority party the right to end debate over federal judicial nominees with a simple majority of senators by proclaiming Senate Rule 22 unconstitutional, even though the rule itself would remain in place.
The reason for creating a precedent declaring the supermajority rule unconstitutional instead of simply changing the rules is because it would take a two-thirds vote to change the rules. But it would only take a majority to change the precedents. In other words, the Republicans want to simply sidestep Senate rules, and by doing so would force Democrats to accept whoever the president wants to nominate for the federal bench without the ability to challenge the president's wisdom in doing so.
Historical Filibusters
The right to extended debate was not created until 1806, when the Senate cleaned up its rulebook and dispensed—-probably by mistake—-with the rule that allowed a majority to limit the debate. Filibusters did not begin in earnest until the ... Democratic and Whig parties formed several decades later.
-- Sarah Binder and Steven S. Smith,
Atlanta Journal-Constitution,
May 25, 2003
Here are a couple of examples of filibusters through history (some come from dkosopedia.com, others from Time magazine and several other sources):
- The filibuster was invoked from time to time in early American history, such as in 1841 when Democrats sought to thwart Sen. Henry Clay's banking bill. But the filibuster never became a major issue until early 1917, when it was used to defeat legislation to arm merchant ships. That led to a rule passed under pressure from President Wilson that allowed Senate debate to be ended by a two-thirds vote.
- Ratification of the Treaty of Versailles that ended World War I was held up in 1919 by a Senate filibuster headed up by anti-Wilson Republicans.
- In 1932, Louisiana Democrat Huey Long staged filibusters on various bills he considered unfair to the poor. Long was famous for bringing in oyster recipes to read during his long-winded speeches.
- In 1953, Sen. Wayne Morse (I-Ore.) spoke for 22 hours and 26 minutes during a 1953 filibuster against Tidelands Oil legislation.
- In 1957, Strom Thurmond set the record for the longest individual filibuster at 24 hours and 18 minutes, while holding up civil rights legislation.
- In 1968, LBJ's nominee for Supreme Court chief justice, Abe Fortas, was the subject of a Republcian filibuster that derailed his nomination.
- In 2000, an $18.8 billion spending bill was held up when Illinois Republican Peter Fitzgerald staged a filibuster to block a $10 million allocation for the Abraham Lincoln presidential library in Springfield.
Of course, sometimes it's not always obvious what is and what is not a filibuster. Several of President Clinton's nominees to the federal bench were held up for a long time by Republicans who refused to move the nominations forward.
In the late 1990s, for example, Democrats accused the GOP of filibustering because they were forced to invoke cloture to move the judicial nominations forward, even though no one ever stood up publicly and jabbered for 15 hours. Republicans simply said they were vetting the nominees--with extreme care, apparently. It took four years to confirm Clinton nominee Richard A. Paez to the Ninth Circuit Court of Appeals, even though the judge had already been confirmed with no such hassles as a district court judge.
"There's no automatic check-off system [for filibusters] where we see them in the congressional record," Brookings Institution scholar Sarah Binder told C-SPAN in early April. "They're in the eye of the beholder."
So Why Keep It?
What's good about any of this? Mostly, not much. Except that in each case, even the snakiest examples, complaints, protests and concerns of minority parties in the Senate and the constituents they've represented got heard and had to be considered. Compromise was called for, even if it wasn't always delivered.
That may often be unpalatable--and it certainly was unpalatable at the time to senate majorities and presidents. I don't happen to think that "compromise" is a dirty word. And as outgoing Republican Senate Judiciary Committee chairman Orrin Hatch has indicated, the filibuster is "one of the few tools that the minority has to protect itself and those the minority represents."
Forty years ago, it was the the Republicans arguing for the preservation of the filibuster on the grounds that the constitutional framers meant for the Senate to be deliberative and that doing away with the filibuster would put an end to the right to hold extensive floor debates. Now, the Democrats are arguing that position.
Fact is, as Binder and Smith point out in the Journal-Constitution, these controversies are not new. Small Senate majorities always hate the filibuster. But it is also true that, in the past, both parties have tended to step gingerly around it. Minorities have been loathe to use it in order to discourage large majority parties from doing what the Republicans want to do now. And majorities have been reticent to do away with the cloture rule, out of fear that, should they lose majority status, they might need to use it themselves one day.
And today's Republicans will likely live to see the day when they regret it if they manage to win this fight. As former U.S. Senator and Vice President Walter Mondale has indicated, the Republicans--who, despite their belief to the contrary, will not always be in the majority--will one day want the manuevuer available for themselves.
Sure, it allows for grandstanding. Sure, it has in some instances thwarted progress and ground government to a halt. The fact that the filibuster was used to prevent anti-lynching laws is a stain not only on the Senate, but on all the land.
But think of what is offered in the opposite case, with the filibuster derailed--assuming that the rules would ultimately spread beyond simply the question of judicial nominees, as I assume it eventually would. Presidents, for one, will be free to nominate just about any judge for the federal bench without considering at all the merits of his opponents' concerns. In times of crisis, badly thought out legislation will be slam-dunked without any chance to alter or moderate its impact.
I know, that's not too far from the situation we're in already. But how much worse are we willing to let things get?
-- Kevin Featherly
