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Defending the Filibuster

The Soul of the Senate

Indiana University Press

Soul of the Senate

Headlines in recent years scream out: "Senate's Abuse of Filibuster Rule Threatens Democracy," "A Dangerous Dysfunction," "Filibuster Abuse: Founding Fathers Didn't Plan It This Way," "Filibuster, Gone Rogue: A Senate Rule That Cripples Our Democracy," and a Harvard Crimson op-ed proclaims, "Tyranny of the Minority."

The 2009–2010 Republican filibuster of the healthcare reform proposals of President Obama and the congressional Democrats and the struggles to reach the 60-vote supermajority necessary to overcome this tactic moved the filibuster and associated Senate parliamentary maneuvers again to center stage. As has occurred from time to time in the Senate's history, frustrated majorities and their constituencies, as well as observers in academia, the media, and the Congress itself, have demanded the elimination of "unlimited debate" in the Senate.

Lawyer Thomas Geoghegan in a New York Times op-ed fumed, "The Senate, as it now operates, really has become unconstitutional." He declared that the filibuster is "a revision of Article I itself; not used to cut off debate, but to decide in effect whether to enact a law." Lloyd Cutler, who was White House counsel under both President Jimmy Carter and President Bill Clinton, asserted "a strong argument can be made that its requirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional." And the New York Times, in a 1995 editorial, called it "an archaic rule that frustrates democracy and serves no useful purpose."

The leader of the U.S. House of Representatives, Speaker Nancy Pelosi (D-CA), in a July 2010 interview with the Huffington Post, attacked the Senate filibuster as "the 60-vote stranglehold on the future." She demanded, "The Senate has to go to 51 votes, and not 60 votes ... Getting from where the nation is, to a sustainable place would require doing away with the filibuster." She continued, "It's very doable. It's just a decision. And one of the decisions that has to be made is that the Senate has to go to 51 votes and not 60 votes. Otherwise, we are totally at their mercy."

In the Senate itself, young senators in their first term like Tom Udall (D-NM), Jeff Merkley (D-OR), and Mark Udall (D-CO) began working seriously on filibuster reform. Veteran senator Tom Harkin (D-IA) dusted off a proposal he offered in 1995 to more or less sweep the filibuster away and began pressing for its consideration once again.

There can be little argument but that the right to filibuster in the Senate is being abused. It has been by both parties. It has become the fashion in the public media, academia, and in some quarters of the Congress itself to view the filibuster as strictly a tactic of obstruction and as an affront to majority rule. Nearly forgotten or simply dismissed is the role that extended debate has played in giving voice to minorities, protecting the moderating role of the Senate and the Senate's place as the intended counterweight to an otherwise unchecked executive. In these times of extreme partisan polarization, this role is more, not less, important.

THE SENATE AS "COOLING SAUCER"

Amusingly, it sometimes seems as though no one on any side of the issue can explain or analyze the filibuster without mentioning three figures—two Jeffersons and a Washington. Nearly all descriptions of the practice reference the probably apocryphal story of George Washington explaining to Thomas Jefferson, just back from France, that the Senate was included in the federal design to serve the same function as the saucer into which he poured his hot tea to cool.

The Senate's smaller size, longer terms, and state-wide constituencies all predispose it to be a more moderate, measured body than the House of Representatives, less impacted by the shifting winds of public opinion. The filibuster, although not created by the Framers themselves, grew out of the independent precedents and procedures evident in the Senate from the outset, which themselves grew out of the constitutional design for the Senate. For example, the very first Senate assured that its presiding officer, the vice president of the United States, would be weak in contrast to the powers of the presiding officer of the House, the Speaker.

At least as often when the filibuster is discussed, it is not Thomas Jefferson who is invoked, but Jefferson Smith, the fictional senator played by the great Jimmy Stewart in his romantic portrayal of the filibuster in the 1939 film Mr. Smith Goes to Washington. In that film, the naïve newly appointed senator champions a bill to construct a national boys' camp. Nearly defeated by the cynical powers in Washington, he launches a 23-hour filibuster in defense of the bill, declaring, "I've got a few things I want to say to this body ... And as a matter of fact, I'm not gonna leave this body until I do get them said." The public rallies to his side and the heroic senator wins in the end. When the film was released, Senate Majority Leader Alben Barkley called it "silly and stupid" and asserted that it made the Senate look like "a bunch of crooks." According to the official Senate website, "Years later, producer Frank Capra alleged that several senators had actually tried to buy up the film to prevent its release."

Even the most renowned academic examination of the filibuster, the landmark Politics or Principle? Filibustering in the U.S. Senate, written by Sarah Binder and Steven Smith in 1997, couldn't get past the second sentence of chapter 1 without referring to Mr. Smith Goes to Washington. And, a mere six paragraphs later, Jefferson and Washington are cooling their favored beverage.

Senator Harkin, in February 2010, when introducing S Res. 416, his rules change proposal aimed at squashing the filibuster, invoked Jimmy Stewart's character on the Senate floor only seven paragraphs into his speech. And Washington and Jefferson, sipping their coffee from the saucer, popped up a few short minutes later. A large blowup image of Stewart, exhausted and near collapse, filibustering on the Hollywood mock-up Senate floor was even actually displayed on the real Senate floor during the debate on filibuster reform in January of 2011.

Gridlocked and perhaps dysfunctional as it sometimes is, failing to overcome the extreme partisan political polarization that plagues it today, the Senate nonetheless remains unique among the world's legislatures. Nineteenth-century British prime minister William Ewart Gladstone is often cited by those seeking to describe the nature of the U.S. Senate. He called the body "the most remarkable of all the inventions of modern politics." While few outside of the Senate itself would still label it the "world's greatest deliberative body," it remains a symbol of respect for the rights of the minority in a democratic system of government. In the Senate, no minority can be silenced for long. The views of a minority, even a minority of one, can be heard, and it can, at the very least, have its legislative proposal raised and voted upon. Most importantly, the majority in the Senate is not handed the "keys to the bulldozer."

SENATE'S RULES ESTABLISH ITS CHARACTER

The Senate is most clearly characterized by two features, the right of its members to unlimited debate and their right to offer amendments practically without limit. This is on occasion misunderstood or misstated. The right of unlimited debate in the Senate is not contained in the Constitution, nor is any prescription for cloture (the ending of debate). The Constitution does, however, in Article I, Section 5, state that, "Each house may determine the rules of its proceedings." In setting "the rules of its proceedings," pursuant to this constitutional provision, the Senate adopted Rule XIX, which states: "When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent." This rule combined with the absence in the Senate rules of a "previous question motion"—that is, a motion to end debate and vote on the matter before the body in normal parliamentary procedure—means that senators have the right of unlimited debate.

The Senate's original rules did contain a motion for the previous question. The 1789 rules stated, "The previous question being moved and seconded, the question for the chair shall be: 'Shall the main question now be put?' and if the nays prevail, the main question shall not be put." In other words, a majority vote on the previous question motion would end debate on the matter and a final vote would then occur. The rule, seldom used, was eliminated in 1806, at the suggestion of outgoing Senate president Aaron Burr. From that point on, the perceived "unlimited debate" of the Senate became a fact and along with it the possibility of the use of that right for purposes of obstruction.

Speaking on the Senate floor in 1893, Senator Orville Platt (R-CT) said, "There are just two ways under our rules by which a vote can be obtained. One is by getting unanimous consent—the consent of each senator—to take a vote at a certain time. Next comes what is sometimes known as the process of 'sitting it out,' that is for the friends of a bill to remain in continuous session until the opponents of it are so physically exhausted that they cannot struggle any longer."

In a potentially momentous procedural development in 1917, the Senate adopted Rule XXII, which for the first time provided for a process known as cloture and created a way in which debate in the Senate could be brought to an end, allowing a vote on a bill, motion, or amendment to take place. The rule required a two-thirds vote to end debate. Each senator "post-cloture" would be allowed to speak for up to and no more than 1 hour and any amendments proposed after that point must be germane. Yet the principle of unlimited debate was so entrenched that over the next 46 years, the Senate managed to invoke cloture on only five occasions.

In 1975, after years of efforts by the Senate's liberals to change the filibuster rules, as part of a compromise offered by Senator Robert Byrd (D-WV) and supported by the party leadership on both sides of the aisle, the number of votes required to invoke cloture was reduced from two-thirds of senators voting to three-fifths of all senators "duly elected and sworn." This is the famed 60-vote supermajority required to end debate in the current Senate. As part of the compromise, however, the two-thirds threshold for ending debate was retained for changes in the Senate rules. This difference very significantly raises the bar for changing rules in the Senate, because it requires 67 votes (if all senators are voting), not just 60, when a change in the rules is sought.

This rule in particular makes it easy for minorities in the Senate to slow things down. Majorities are frequently frustrated by the pace of the Senate and the difficulty of enacting their agenda. With that frustration sometimes comes a demand to eliminate the filibuster. The forces on the attack against the filibuster and in its defense have a way of switching sides as the majority power shifts from one political party or coalition to another. That is not to say that there are not principled adherents on both sides. In recent years, such as 2005, for example, in the face of Democratic filibusters of ten of President Bush's federal circuit court nominees, most Republicans were prepared to eliminate the filibuster in order to get their way and confirm the nominations. Most Democrats opposed that effort and rose to defend the filibuster.

The influential liberal voice the Nation argued editorially at the time:

If the [filibuster is eliminated], Congress will become an altered branch of government. In the absence of rules that require the consideration of minority views and values, the Senate will become little different from the House, where the party out of power is reduced almost to observer status ... This is a moment when we decide whether this country will remain a democracy in which those who govern must play by the rules, or will become a winner-take-all system where the gravest fear of the Founders—tyranny of the majority—will be the lasting legacy of George W. Bush, Tom DeLay and Bill Frist.

Fast-forward to 2009–2010 and a series of Republican filibusters against the major elements of President Obama's legislative agenda. Now, the voices demanding an end to filibusters are on the Democratic side of the aisle, and there are no takers among the Republicans. They are defending the right to unlimited debate.

ROLE OF THE FILIBUSTER

There can be little argument but that the right to filibuster in the Senate has been abused by both parties. Vice President Joseph Biden, a longtime member of the Senate, has observed, "Most people would agree that the United States Senate has never acted as consistently as they have to require a supermajority, which is 60 votes, to get anything done. That's a fundamental shift. I was there for 36 years. I don't ever recall it being abused and used as much as it has now."

It has become the fashion in academia and the popular media, as well, to view the filibuster as strictly a tactic of obstruction and as an affront to the sacrosanct majority rule. Nearly forgotten or simply dismissed is the role that extended debate has played in fostering the moderating role of the Senate as intended by the Framers in order to ensure minority participation in the legislative process and serve as a counterweight to an otherwise unchecked executive.

James Madison wrote in The Federalist No. 51 that

[I]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is no doubt a primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The Founders established a series of Madison's "auxiliary precautions" as checks and balances, many of which do not strictly adhere to majority rule precepts. They feared unfettered majorities. For example, the Connecticut Compromise itself set up a Senate that disproportionately represents the smaller states without regard to "one man–one vote ideals," and the Electoral College created in the Constitution fails to assure that a majority elects the president of the United States.

Lindsay Rogers in The American Senate expresses it well: "One must understand clearly the nature of the system [the Framers] desired in order to appreciate the present-day importance of the Senate. This importance is quite different from that contemplated by the architects of the Constitution, but it results, nevertheless, from their arrangements to prevent 'an unjust combination of the majority.'"

In this book, we trace the history of the filibuster in the Senate and the struggle to reform abusive uses of the filibuster and associated tactics. We outline the dangers that arise as frustrated majorities seek to make the legislative process more "efficient" in order to adopt their legislative agenda. We defend the historic role of the filibuster as a protection of minority rights and a force for consensus building. We lay out a series of proposed reforms to reduce the incidence of filibuster abuse and we track the outcomes of the current effort to rewrite the Senate rules. We argue not only that the filibuster is a feature of the Senate rules that should be retained but that it is a part of the Senate's fundamental character.

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Excerpted from Defending the Filibuster by Richard A. Arenberg, Robert B. Dove. Copyright © 2015 Richard A. Arenberg and Robert B. Dove. Excerpted by permission of Indiana University Press.
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