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Filibustering about filibustering in the U.S. Senate

The Senate Rules Committee held a hearing yesterday on the filibuster, and the possibility of changing the rules that enable 41 senators to prevent the other 59 from passing a bill or confirming an appointee. They're not gonna do it.

Democrats, starting with Rules Chairman Charles Schumer of New York, showed data suggesting that the use of the filibuster is at all time highs, with the implication that this is the Republican strategy for preventing anything from happening while they are in the minority.

Republicans, including ranking member Robert Bennett of Utah, tried to turn the tables (I will admit I didn’t see this one coming) by arguing that the Dems score a filibuster every time they file a cloture motion, and that the reason the filibuster count looks so high is that Majority Leader Harry Reid goes for cloture before the Repubs have had a reasonable chance to get consideration of their amendments.

Members of each party (I will confess that I did see this one coming) argued that the other party bears more responsibility for abusing the filibuster and creating bad precedents and a bad climate. Bennett pointed specifically to Democratic filibusters against G. W. Bush’s judicial nominees, which broke a tradition against filibustering judicial nominees. Bennett personally cited former Majority Leader Tom Daschle as the miscreant on that one.

I gather there is no serious proposal at present to change the filibuster rules. Dems were up in arms about the issue when the Repubs were filibustering the health care bill, but the issue has receded somewhat since that bill passed or, as Repubs insist, was “rammed through.” There are some younger senators (but not nearly enough to do anything about it) represented at yesterday's hearing by Tom Udall, D-New Mexico, who favor change, but they haven't settled on a proposal (at least Udall hasn't). It also seems that the longer one stays in the Senate, the more in love one falls with the majesty of the filibuster.

The tone of the Wednesday hearing was more exploratory, as if the question was whether there was anything the Senate could possibly do to cut down on the number of filibusters.

Minnesota’s own Walter Mondale (who, as a young senator, played a big role in changing the rule so that it takes 60 votes, instead of 67, to invoke cloture and break a filibuster) was one of the star witnesses. Mondale doesn’t want to do away with filibuster, but wants to lower the cloture number a little further, perhaps to something in the 55-58 range. A summary of Mondale’s  written statement is here.

The current senators treated Mondale with tremendous respect but the show-stealer was an appearance by current Sen. Robert Byrd of West Virginia, who is 92, has been in the Senate since 1959.  Byrd, who has been majority leader and minority leader during his long career and has specialized in attention to the Senate rules, doesn’t attend many committee hearings any more. The other senators spellbound as the longest-serving senator in history struggled to read a short statement from his wheelchair.

Here’s an excerpt:

Byrd defends the fiilibuster but denounces its recent overuse by Republicans (“the challenges confronting our nation are too grave and too numerous for the Senate to be rendered impotent in confronting them”). But he didn’t seem to want any rule changes to deal with it. He thinks if modern senators could get over their “fixation with money and media,” filibusters could be overcome the old-fashioned way, by tactical maneuvering within the existing rules and by waiting out the filibusterers. But this won’t work, he said, when senators insist on working a short week and spending most of their time either dialing for campaign dollars or trying to get on TV. His full statement is here.

After he spoke, Mondale and the senators on the committee spent the next few minutes telling stories about Byrd and expressing their admiration. No one was rude enough to mention his early days as a Klansman.

Filibustering rules changes on filibustering
Byrd and Mondale were at odds with each other over a question that would become key if the Senate ever got serious about filibuster reform. Current Senate rules require a two-thirds vote (not a mere 60-vote supermajority, as for ordinary filibusters but 67!) to change the rules.

Back in 1975, when Mondale led the charge to change the cloture rule from 67 to 60, he did it by arguing, and getting supportive rulings from then Vice President Nelson Rockefeller (presiding officer of the Senate) that the Senate starts each new session with a blank slate and therefore can adopt any rules it wants, for that session, by majority vote. This is, by the way, and always has been true in the House. But because roughly two-thirds of the senators are in the middle of their six-year terms when each Senate session begins, Senate tradition has held that the Senate is a “continuing body” and that its rules are permanent, unless two-thirds of the senators agree to a rule change.

This is an aggressive, dicey maneuver, but Mondale used that possibility to force the issue in 1975 and he thinks it could and should be done again. Byrd went out of his way to disagree on that point and to argue that the two-thirds rule is vital to the Senate’s role in preserving democracy.

Things can get pretty grandiloquent on this subject. From what I heard yesterday, we are years if not decades away from the Senate giving serious consideration to changing the filibuster rule, let alone adopting the truly radical notion of majority rule.

Majority rule = ramming things through
I’m pretty sure the words “majority rule” were never mentioned yesterday. The concept was generally alluded to as a horror, usually by saying that the Senate doesn’t want to turn into the House. Derogatory references by senators to the House probably include various horrors, but fundamentally it refers to the fact that in the House, a majority can pass a bill.

Former Sen. Don Nickles of Oklahoma, who served in the Republican leadership during his tenure and who testified yesterday in favor of keeping the filibuster rules exactly as they are, said the rules are necessary to preserve the Senate’s status as a “deliberative body.”  He expressed his horror at the idea of the Senate being turned into “a body where 51 people can ram things through.”

Defenders of the filibuster generally argue that without it, the Senate would not be able to ensure full debate. That argument ignores the reasonable proposal that's been kicking around for years, sponsored by Sen. Tom Harkin, D-Iowa. As described in a recent Christian Science Monitor piece:

"Under the Harkin proposal, the first vote for cloture (the term for ending a filibuster) would require 60 votes, as is current practice. But after a few days had passed, cloture would only require 57 votes. After a few more days, it would require 54, and so on. Eventually a bare majority of 51 votes would be enough."

Depending on how long was provided at each stage, you could surely provide for full debate, but still eventually force a majority rule vote. Is it "ramming through" no matter how long the opponents are given to make their case?

Mondale, by the way, likes the idea of the Harkin plan, but not the last step. He favors gradually reducing the number of votes needed for cloture, but not the part where eventually 51 votes would suffice. Under that plan, Mondale has told me, the majority would just wait out the minority.

Maybe so, but at least the minority would have a full chance to express its arguments, wouldn't it? So the filibuster is not about ensuring full debate. It could be about encouraging the majority and the minority to consider compromises that would satisfy both sides. And maybe that would be a good thing. But in the current climate, it is about allowing the minority to prevent the majority from doing anything that the minority opposes.

Constitutional and historical nonsense
Personally, in case you haven’t figured it out from my snotty tone above, I favor majority rule. Defenders of the filibuster frequently refer to the Senate’s special role in the Constitution and to the Founding Fathers.

It’s true, as Sen. Byrd alluded to yesterday, that the framers saw the Senate as a vital bulwark against tyranny by the executive branch and by short-term swings in public opinion. The mechanism they put into their plan to help the Senate fulfill that role was the six-year staggered terms, not the filibuster.

There are many other mechanisms built into the constitutional system to protect minority rights and to prevent mob rule. The filibuster isn’t one of them.

Efforts to tie the Framers to the filibuster are historical nonsense (not that that stops anyone from doing it). The filibuster is not in the Constitution. No framer of the Constitution every advocated for it. There were no filibusters in the early Senate and there was, in fact, a Senate rule, just as in the barbaric House, that allowed a majority to end debate and force a vote. The tradition came about by accident decades later and its most famous use was to enable southern senators to block progress toward equal rights for African Americans.

I would like to see the filibuster abolished. I do not intend to change that position when Republicans gain a majority. On other matters, conservatives and Republicans generally say they are prepared to trust the electorate — not 40 percent of it but the majority of it — to decide these matters.

Maybe my arguments are wrong-headed. But if so, I wish that defenders of the filibuster would base their justifications on real history, the real language of the Constitution, the real track record of how the filibuster is used and an acknowledgement of reasonable proposals like Harkin's.

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Comments (10)

"Efforts to tie the Framers to the filibuster are historical nonsense (not that that stops anyone from doing it)."

>Really!

"The filibuster is not in the Constitution.

>Agreed. Neither is it prohibited, or the rule of absolute simple majority vote mandated.

"No framer of the Constitution every advocated for it.

>Nice sleight of hand. Facts: in 1806, I believe, when many of the framers were still politically active, rules were knowingly set up which, though not ADVOCATING it still ALLOWED for it -- something that less than fifty years later was in fact utilized in the senate, and has been used ever since. And the purpose, then as now, was to provide a stronger protection for minority views in the deliberative body of the legislature.

"There were no filibusters in the early Senate

>It would be helpful to explain why here -- as party loyalty rose as a factor in deliberations, reasoned debate in the senate declined, which evenutally created the need for the filibuster.

"and there was, in fact, a Senate rule, just as in the barbaric House, that allowed a majority to end debate and force a vote.

>Funny, in extensive readings on this subject this site contains the ONLY reference I have seen to such a rule. May I have citation?

"The tradition came about by accident decades later and its most famous use was to enable southern senators to block progress toward equal rights for African Americans.

>"by accident" is not exactly how it happened. When it was first used, it was well within the "tradition" of the Senate that each member had the right to speak to an issue with no limits on the time s/he could take -- so no-one in the Senate raised objection when when desperate minority members used that tradition to block bills they absolutely could not swallow and which they knew they could not modify to their liking.

As an assembly of "gentlemen" it would have been considered vulgar to act otherwise. And, amongst "gentlemen" it still is today.

I prefer to remain a "gentleman" in debates myself, and try to avoid bullying opponents with slurs, desk slamming, shouting over (a liberal favorite), and drowning out the minority with hasty appeals to "Ignore them -- vote now!"

In my view, it will be a sad day if the United States Senate decides to abandon its tradition since its earliest days of being an assembly of "gentlemen" and decides to become just another ranting crowd of bullies.

Eric, are the Powerline boys correct in their history lesson on Mondale's wishy-washy stance on the filibuster?

http://www.powerlineblog.com/archives/2010/05/026344.php

So Mondale supports the current filibuster in 2005 but wants it watered down now? Gee, I wonder what's different? Could it be which party is in power?

Hi John, hope you are well.
Well we agree that the filibuster was not banned by the Constitution not banned by it. My pointy is that people should stop talking as if it is part of the Con or is derived by the founding fathers.
No sleight of hand on the Framers. Sen. Byrd quoted Madison as if Madison was talking about the filibuster, but he wasn't. It certainly discussed at the Philadelphia convention. I'll put the burden on you to find an actual framer who advocated for a rule that would prevent a final vote on a bill in the Senate. I'll be surprised if you find one.
For my statement about the original Senate rules, I rely on filibuster scholars Steve smith and Sarah Binder. They find that the first collection of Senate rules was maintained by Thomas Jefferson himself, in his role as Vice President under John Adams. Jefferson's rules included the "previous question" which allowed a motion to end debate and vote.
You and others sometimes confuse allowing an individual senator to talk as long as he wants with the filibuster. The modern filibuster can last for months and doesn't require anyone to talk. It is simply an acknowledgment that the sponsors of the bill don't have the 60 votes for cloture. So one of my points is that people should talking about it as if it is about allowing full debate.
Oh, and the historical accident business also comes from the Smith-Binder research. When Jefferson's rulebook was reassembled to be adopted and become the official Senate rules, the previous question rule was dropped, but I believe Binder found that it was not discussed and appeared to have been an oversight.
And, like you John, I don't want to turn our country, our Congress or even my little blog into just another ranting crowd of bullies. But I do favor majority rule, with the exception of individual rights guaranteed by the Constitution and those things (like removing a president, ratifying a treaty, amending the Constitution) for which a supermajority is called for in the Constitution. But if they pass a law outlawing you or me, I'll make an exception for that too.

The system would work fine if we had politicians that actually wanted to solve problems.

Hi Ed,
Scott Johnson of Powerline is a smart guy but I often find him a master of selective perception. With very few exceptions, the enthusiasm of Senators (including those Johnson admires) varies sharply depending on which party has the majority. It's hard to point to a clear 180 contradiction between Mondale's historical position (the filibuster needs to be curbed by reducing the cloture number from 67 to 60), his position in the 2005 Mondale/Durenberger op-ed that Powerline cites (it defended the filibuster in general and the Dems right to use it to block Bush judicial nominations) and his position now (the 60-cloture rule should be revised to a lower number because current hyperpartisanship is making the filibuster a bigger problem to the functioning of the Senate.
You don't have to squint at the record very hard to realize that Mr. Mondale's frustration with the filibuster grows larger when it is being used to block legislation that he favors. But to try and convict Mondale of rank hypocrisy on this record, and to call him a "clown" as Johnson does, borders on self-parody.

A sidebar, sort of:

In 1950 the then Senator Wild Bill Langer, North Dakota, filbustered for 29 hours and 53 minutes; a charactar politician to be sure. An elder sibling of mine called Wild Bill a
scoundrel..."scoundrel to be sure I said, but interesting none the less."

Elder parent was an independant Republican (with accent on independant; strange politics N.D.) yet he loved that senator although he probably never voted for him.

On a Sunday afternoon ride in the country Dad would spot the side of a barn facing the highway painted boldly with 'Vote For Langer' running on the NPL ticket.

Next year,same barn;but then, Langer running on the Republican ticket. Never heard my father laugh so hard...

Yes Langer was probably a scoundrel at times but certainly he agitated the average voter to be 'aroused' to a degree of passion in choosing a candidate. Don't see or hear much of that anymore. And yes, I'm off-subject here, but what the heck...it was filbustering and the Constitution, right?

Back almost on-subject here... Byrd he's a strange bird...depending which side of his career you want to recognize; early bigot...later repented, for whose sake I wonder?...so it goes.

Did Langer set the single-soul filibuster record? Maybe so.

Mondale may or may not be a clown. Johnson may or may not be a "master of selective perception." Eric Black may or may not be a pop psychologist who dresses his own narrow political preferences in pseudo-scientific jargon in order to take shots at someone while appearing to be above the fray.

Bottom line is that journalists, aware of the 2005 op/ed, ignore it and put Mondale on a pedestal. Whatever you think of Scott Johnson's conclusions, at least he allows readers to make up their own minds.

"I'll put the burden on you to find an actual framer who advocated for a rule that would prevent a final vote on a bill in the Senate. I'll be surprised if you find one"

>Since I do not claim any framer "advocated" for such a rule, I see no reason to defend such a claim. In the lengthy discussions over Senate rules, however, it seems naive to think that the idea of limiting the opportunity to speak by a senator did not come to mind, and not only did they not propose it, they left out -- when they could have included it -- any such limitation.

"but I believe Binder found that it was not discussed and appeared to have been an oversight"

>We will have to disagree here -- I doubt very much, given the assembly of "gentlemen" that worked on the rules, that this was an "oversight" as suggested by Binder. I need much more proof of this, especially in light of later unchallenged usage in the Senate.

"The modern filibuster can last for months and doesn't require anyone to talk."

>I agree that this johnny-come-lately innovation, whereby the speaker does not actually have to hold the floor by speaking, is an abuse and should be corrected.

>As for ranting crowds of bullies, I submit that your wish to transform the Senate into the House of Representatives would do precisely that, as in my thinking the present Pelosi house illustrates, and previous republican dominated houses do as well.

>If either or both houses of congress change hands this fall, it will be by small majorities. I will be interested to see how hotly reform efforts persist should that be the case. My position, however, will remain firmly unchanged.

Added note:

I strongly favor Senator Byrd's approach in his remarks, which may be because he and I are closer in age...

availability of the filibuster did not restrain the herd of Senators rubber-stamping every legislative proposal by the Bush Administration post-9/11, so the filibuster isn't always used to restrain the majority from unreasoned lawmaking.

I'm with Mr. Black - the filibuster should go.

I'm also against the personal "holds" that Senators can make on nominations, and also against the secrecy about who is forcing the hold.

I would also like to see less power to set the agenda in the hands of committee chairs. All a well-funded special interest need do is buy the committee chair with contributions, and their interests will be preserved - one need not bribe an entire majority of Senators or Representatives.