Filibuster Notes

By John Ballard

It was sure to happen again. This time it's Tom Harkin,

Sen. Tom Harkin (D-Iowa) intends to introduce legislation that would take away the minority�s power to filibuster legislation.

Sen. Tom Harkin (D-Iowa) intends in the next few weeks to introduce legislation that would take away the minority�s power to filibuster legislation.

[...]

The filibuster has been a long-running controversy in the Senate. In the 20th century, Southern senators used it to block civil rights legislation supported by a majority of the Senate.

More recently, Democrats used the filibuster when they were in the minority, while Republicans criticized the procedural rule. Democrats have increasingly criticized it in this Congress, though Obama and Senate Majority Leader Harry Reid (D-Nev.) are on record supporting its existence.

Harkin argues the filibuster is being used too commonly in today�s Congress.

In a Jan. 4 letter to his colleagues, Harkin noted that filibusters were used just once per Congress in the 1950s, compared to 139 times in the last Congress.

�At issue is a fundamental principle basic to our democracy � rule of the majority as a legislative body,� Harkin wrote. �Elections should have consequences. Yet the Senate's current rules allow for a minority as small as one to make elections meaningless.�

Etcetera, etcetera...

Senator Harkin is one of a small number of men in that place that I look to when I'm not sure how to lean. Over the years, I have found myself in agreement with him on almost every issue. Anyone who gets an "F" from the NRA and Gun Owners Association of America is okay in my book. But I have reservations about this move to tinker with the rules of the Senate. I'll explain later. First, a little history...

Although the term filibuster is used frequently, most people have no clear idea what it means or how it came about. Confusion comes about because the US Constitution only specifies super-majorities for a limited number of procedures.

• Convicting an Impeachment (2/3 majority in the Senate - Article 1, Section 3)


• Expulsion of a member of one house of Congress (2/3 vote of the house in question - Article 1, Section 5)


• Override a Presidential Veto (2/3 majority in both the House and the Senate - Article 1, Section 7) 


• Ratify a treaty (2/3 majority in the Senate - Article 2, Section 2)


• Passing of a Constitutional Amendment by Congress (2/3 majority in both the House and the Senate - Article 5)


• Calling for a Constitutional Convention (2/3 of the state legislatures - Article 5)


• Ratifying a Constitutional Amendment (3/4 of the states - Article 5)


• Restore the ability of certain rebels to serve in the government (2/3 majority in both the House and the Senate - 14th Amendment)


• Approval of removal of the President from his position after the Vice President and the Cabinet approve such removal and after the President contests the removal (2/3 majority in both the House and the Senate 25th Amendment)

Notice how everyday business in the legislative bodies is not on the list. So where does all this talk about filibusters come from? This is what the Senate website reports.

Using the filibuster to delay or block legislative action has a long history. The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.

In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Kentucky Senator Henry Clay, he threatened to change Senate rules to allow the majority to close debate. Missouri Senator Thomas Hart Benton rebuked Clay for trying to stifle the Senate's right to unlimited debate.

Three quarters of a century later, in 1917, senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture." The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation, until cloture was invoked after a 57 day filibuster against the Civil Right Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current one hundred senators.

Notice the change from two-thirds to three-fifths. Prior to 1975 it a "filibuster-proof majority" would require six more votes than it does today. You think the forty-first vote is important? Try the thirty-fourth and see how much more power today's minority party has than thirty-five years ago. Everybody take a deep breath and relax a moment.

Just five years ago the shoe was on the other foot as a Republican-controlled Senate wrestled with a Democrat minority over President Bush's judicial nominees. Remember all the talk about the "nuclear option" over whether or not the Senate would even allow a simple majority vote? Except for a small minority, most of us have now forgotten the details of that hot debate but at the time, as now, the majority party was prepared to invoke what de Tocqueville identified as a tyranny of the majority. If memory serves me the issue at the time was over the appointment of John Bolton to represent the US at the United Nations.  It happened and we survived. (In fact, John Bolton may have inadvertently made important contributions to Barack Obama's international popularity, but that is another matter.)

I remember when the filibuster was an important living reality. It was used by Southern politicians to fight the Civil Rights Act of 1964.

At the time I was involved with the civil rights movement I thought that a filibuster was an unmitigated evil, a way that a minority of nasty people could stand in the way of progress by opposing the majority.Talk of filibuster was no idle threat since only seven years earlier Senator Thurmond had staged a record twenty-four hour filibuster blocking another civil rights act.

As I grew older, I learned that securing a majority is not the same as selling the result. Anyone who believes otherwise need only to look at the Tea Party.

Why is a super majority important?

There are instances where the minority view is so strongly held, so resistant to change, that without that super majority the results will be so lacking in good will that "victory" will be somewhat hollow. I know from personal experience that even after cloture was invoked in 1964 resentment ran very deep in white circles. It is fair to say that the same resentment is alive and well today, although it is no longer popular to express it openly as in the past. A change of behavior was all that was achieved by law. A change of the law does not reach, and cannot reach, into hearts and belief systems. That is a change measured in generations, not sessions of the legislature.

A super-majority does not improve good will. If anything, a super-majority tends to make the losing side even more durable, less open to good will no matter how it is expressed. It is a clear political example of push coming to shove. The super majority says to the losers "Get over it." The much vaunted "will of the majority" is invoked, along with an unwillingness to examine, much less honor, any core objections at the heart of the opposition. What happens next has less to do with good will than behavior. In the case of health care reform, the super majority manifests an uncompromising level of political will, insuring that the losing side will become less likely to continue obstructionist tactics. The losers are apt to become more cynical, if less active, instead. They lose, clearly, with only one reward -- the record will forever show the stand that they took, the principle for which they fought, and the constellation of opponents united in defeating that position.

To repeat...parliamentary victories do not insure a change of heart on the part of the losers. If anything, they cause the losers to become even more stubborn in their minority position. A near-win (simple majority instead of a super-majority) can fuel the fires of the losing side, insuring that conflict will last longer rather than resolving more quickly. The super-majority required to overcome a filibuster is like the coalition concept found in parliamentary systems. Coalitions, of course, are political solutions to NON-majorities whereby a constellation of opponents join hands for the purpose of creating enough votes to get something done...despite other disagreements.

In order to stop a filibuster it is necessary, at least for a moment, that people who disagree about other matters come to common ground, if only for that moment, to send a message to those staging the filibuster that they are fighting a losing battle for the political will of most - not just a majority - of the people.

It has been suggested that the filibuster is "unconstitutional."
Maybe it is, since that designation has proved to be a moving target throughout our history. Many years passed from the time the US Constitution was created and the passage of amendments to clarify specific issues clearly designated as "constitutional." Things like slavery, women's right to vote, income tax and so forth seem to have escaped notice when the document was written, and so had to be included later. Likewise for the prohibition of hard liquor...er, excuse me, that one seems not to have worked out and had to be repealed.

We have to wait to see if the filibuster, with its long and tarnished history may at last be discovered to be unconstitutional. Some "activist" judge may play that card in time but I wouldn't bet on it. Historically the courts have bent over backward to avoid political issues, except in cases where the legislative branch has repeatedly shown pusillanimity supplying legal guidelines to follow. Even the Supreme Court tends to shy away from political hot potatoes. Sometimes they find their way (Plessy stood until Brown reversed it) but really important legislative battles eventually have to be faced by both houses of Congress. When their hands are tied because the law is not clear the Court, like a cat stuck in a tree needs legislative action to get it down.

Unfortunately, lawmakers lean toward getting reelected too much to risk taking clear positions on controversial issues. I know what that's like. As a restaurant manager I never took a position on smoking in the dining room, needing the revenue from smokers and non-smokers alike, refusing to alienate either side. Smoking in public is a case where a political remedy (as in the case of public accommodations, legally mandated by a civil rights bill) is needed to make the problem "go away." City and county governments are realizing this and doing the hard, if not popular thing by putting limits on public smoking, at least in their jurisdictions. In the case of invoking cloture, legislators are in the same pickle. But they are reluctant to make the right move. Does anyone think that health care is any less a universal problem crying out for a universal solution than racial discrimination, public accommodations or smoking?

I can't figure out why Senator Harkin is bringing up the Senate rules at this late date other than to bypass the vote of a single Senator from Massachusetts. Politically it is not very different from the ping-pong option and the political result would be pretty much the same even though the practical impact would be more desirable for those who like the Senate bill better than what came through the House. That maneuver is not likely to happen anyway because teabaggers have the Blue Dogs by the nuts.