Sections

SENATE PRESIDENT: The Chair recognizes Senator Smith!

SENATOR SMITH: No sir, I’m afraid not! No sir. I yielded the floor once before, if you can remember, and I was practically never heard of again. No sir. And we might as well all get together on this yielding business right off the bat, now.

What you have just read is a scene from “Mr. Smith Goes to Washington,” the beloved 1939 film that brought the concept of the filibuster out of dusty Senate-hall obscurity and into the national consciousness. If you are familiar with the film, then you know that this particular scene marks the beginning of Senator Smith’s 23-hour filibuster—a delay tactic that requires senators to keep talking during Senate debate in order to prevent a vote on a bill they oppose. In Smith’s case, he single-handedly prevents the rest of the Senate from voting to expel him over false corruption charges.

I bring this story up because I have been thinking about filibusters a lot lately. Apparently, so are senators. Statistics clearly show that they are using filibusters more than ever before. Fifty years ago, Senate terms never saw more than a handful. But in just this past decade, Senate terms experienced at least fifty. The filibuster has now become an ingrained part of political life, with every major piece of legislation having to pass its grueling test before becoming law.

That being said, I have found little evidence that people outside of the senate truly understand filibusters. This is troubling. Too often, when people think about filibusters, they imagine Senator Smith, hunched over his desk and engaged in his final, desperate monologue. It certainly makes for a memorable movie scene. But this romanticized view of the filibuster not only betrays its history, but also makes it difficult for us to take a clear look at the merits of this famous tactic. I write this column today as a way to examine the history of the filibuster and how it has evolved into what it is today.

It must first be pointed out that the Constitution makes no mention of the word filibuster. It simply gave both houses of Congress the power to determine their own procedural rules, most of which were based on English parliamentary procedure. In the early days of the republic, when both Houses were small, these rules allowed members to speak for as long as they wanted. At first, there existed a rule allowing the Senate to vote to “move the previous question,” which ended floor debate and preceeded a final vote. However, Senators rarely invoked this rule, and eventually eliminated it altogether in 1806. While this theoretically threw the door wide open for filibuster after filibuster, they were never used in practice. Legislators preferred other methods of delaying bills. In the House of Representatives, for example, members would sometimes use a tactic called the “disappearing quorum,” during which minority congressmen who were present on the floor would refuse to vote and then declare an absence of a quorum.

By 1842, the 242-member House of Representatives had grown large enough that its leadership decided to limit debate time, thus ending any potential for filibuster. The Senate, on the other hand, was still quite small in comparison, and no such moves were made. Tradition, and the notion of a “dignified Senate” prevented members from seeking a filibuster. But this changed in 1837. Three years previously, the Senate had voted to censure President Andrew Jackson for withdrawing federal deposits from the Bank of the United States. Jacksonian senators sought to remove the censure from the Senate Journal, and they commenced a filibuster, talking for hours and preventing the Senate from carrying out the day’s business. Finally, that night the Jacksonians managed to pass their bill removing the censure, and the filibuster ended.

In the second half of the 19th century, the number of filibusters grew, as did attempts to reform the practice. After Senators William King and Henry Clay had a near-filibuster showdown on the Senate floor over Clay’s proposal to charter the Second Bank of the United States, there were four attempts in the next fifty years to either bring back the “move the previous question” rule or to establish a method of cloture. But it wasn’t until 1917 that the Democratic-controlled Senate, at the behest of President Woodrow Wilson, adopted a cloture rule. Under this rule, two-thirds of voting senators could end debate and move to a final vote.

Of course, while this rule was a big step in theory, it is difficult to say if it made much of a difference in practice. Rounding up two-thirds of voting senators to support anything other than the most popular of bills was not an easy task, and many filibusters continued while a frustrated majority tried again and again to end debate. The 1960s were particularly contentious, as Southern Democrats frustrated Northerners by filibustering civil rights bills to their hearts’ content. However, one of the few victories of the cloture vote came in 1964, when 67 senators voted to stop Senator Robert Byrd’s 14 hour and 13 minute filibuster against the Civil Rights Act. The act was later passed by 71 votes.

In the 1970s, efforts to reform the filibuster continued. With firsthand experience of how a filibuster could delay Senate proceedings, Senator Byrd, now the majority leader for the Democrats, began to use a “dual track” system of legislation. Under this system, the majority leader could seek unanimous consent to push a current bill off the table as unfinished business and move on to another bill. In the case of a filibuster, dual tracking allowed the Senate to continue to function the way it never could before. And in 1975, the Democratic majority changed the cloture rule so that only three-fifths of senators sworn in would be necessary to end debate (In the 100-member Senate, this amounts to 60 votes). At this point, many Democrats probably thought that the filibuster had been effectively bypassed.

They were wrong. As I mentioned earlier, filibusters and the subsequent cloture votes have increased exponentially over the past half-century. There are many possible reasons for this. First, the two parties in Washington have become more bitterly divided than any time in recent memory, perhaps since the Civil War. This fact, though made cliché by the constant harping of the media, must not be overlooked when studying the workings of the Senate. The strong divisions between liberal Democrats and conservative Republicans have grown to the point where neither side seems to feel comfortable letting the other rule as the majority without filibustering at every opportunity. Since it is rare for either party to achieve a 60-vote majority for any length of time, stopping these filibusters often proves difficult, and many a Senator has invoked the phrase “nuclear option,” referring to a rule change that would end the filibuster forever.

Second, the dual tracking system, while succeeding in moving Senate procedure along in the face of a filibuster, also made the process of filibustering much easier. Think back to the last time you watched “Mr. Smith Goes to Washington.” One thing this movie demonstrated quite well was the sheer effort that goes into a filibuster—Senators must continue to speak for hours on end in order to keep it alive. But if the majority leader switches to another bill, this no longer becomes necessary. Senators can block a bill by filibustering just long enough for the Senate to move on to other business. Until the bill comes back up for debate, they are not required to do anything to continue its delay, thus making their filibuster much easier.

Of course, Senate leadership does not always use dual tracking, which brings me to my third reason. For reasons not entirely clear, Senate leadership—particularly the current Democratic majority—seems unwilling to face an actual filibuster. Instead of forcing the minority to take to the floor and start reading out of the D.C. phonebook, the leadership prefers to essentially stall its own bill, amending it until it is more acceptable to the minority. The hope is that with enough changes, there will be no need for a filibuster. The reality is that if the minority is actually willing to compromise, the result is often watered-down, centrist legislation. And if not (as is the case with the current health care reform bill), the result is often no legislation at all.

Basically, usage of the filibuster has gotten to the point where nothing can be done in the Senate without 60 votes in favor. In our current political climate, this is troubling. Both parties have found it extremely difficult to hold onto that kind of majority. Case in point: Scott Brown’s recent victory in the Massachusetts special Senate election. One has to wonder if 41 Republican senators will allow 59 Democrats to achieve their agenda.

At the same time, one has to wonder what the Democrats will do about it.

By now, you probably expect me to call for the end of the filibuster. That would certainly be an easy call to make, and I won’t pretend that I am not leaning toward it. But I think, at least for the purposes of this column, I am going to have to stop short of that. The filibuster is a tough issue to deal with. It continuously agonizes the majority, only to delight them once a poor election season leaves them as the minority again. It often stands in the way of popular legislation, but who is to say that popular legislation is the best legislation? (No one who pays attention to Congress, that’s for sure). The filibuster is used far too often, without a doubt. But I think there are some rather obvious ways for the Senate majority leadership to discourage this practice without going as far as ending it altogether.

In the coming year, Senate deadlock will almost certainly raise the question of the filibuster’s existence. While it is a worthy question to address, I, like many Americans, hope the Senate will fulfill its role as the world’s greatest deliberative body and not be too hasty.