It’s time to filibuster the filibuster

I’ve notice, of late, that there is considerable confusion as to how the Senate filibuster process works. With this in mind, it seemed like a good idea to take a look at this process, where it came from and what its future might be.

Many of us first became aware of the filibuster while watching Jimmy Stewart, tired and hungry, as he held the the floor of the United States Senate by reading from cookbooks, heroically struggling to keep going in the Frank Capra movie, “Mr. Smith Goes To Washington.” In real life, the filibuster – derived from the Dutch word for ‘pirate’ (that should tell you something) – came into being in the 1850’s as a tool to keep debate going in the senate when one side wanted to avoid a final vote. Senators in opposition to a bill would hold the floor of the senate by speaking for as long as possible thus preventing a vote.  If they stopped talking, the filibuster would come to an end and vote would go forward. The method has, over the years, produced some of the greatest  moments in Senate history.

During the 1930s, Senator Huey P. Long filibustered against a bill that he felt favored the rich over the poor. Long stood in the well of the Senate for 15 hours reciting Shakespeare and reading his recipes for ‘pot-likkers.” Finally, Huey P. succumbed to the call of the Senate men’s room (they were all men n those days) and the filibuster came to an end.

However, the record for the longest speech goes to Senator Strom Thurmond of South Carolina who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.

For a time, the filibuster existed both in the Senate and the House of Representatives. However, as the numbers in the House grew, the process became too unwieldy leading to the procedure that exists today where the Speaker sets the amount of time for debate and that’s that.

In 1917 the Senate codified the procedure for filibuster by writing Senate Rule 22. The rule required a 2/3 vote of the entire Senate to invoke cloture – the process of cutting off the opportunity for filibuster and requiring a final vote on the merits of the bill. Over the years, the  2/3 has sometimes meant 2/3 of the entire senate and sometimes meant 2/3 of those who were actually voting.

In 1975, the Senate reduced the number of votes required to invoke cloture to 3/5 (60 votes) of the entire membership of the Senate. At the same time, they made the filibuser ‘invisible’, meaning that if 41 senators said they were prepared to vote for a filibuster, the actual filibuster – Jimmy Stewart style – would not have to be acted out.  This made the process painless  and far less entertaining. No longer would a filibustering senator be required to stand on the floor, without a bathroom break, for as long as humanly possible in order to stop a vote for cloture. This spelled the end of the great performances in the traditon of the Huey Longs and Strom Thurmonds.

But that doesn’t mean the Senate has stopped using the filibuster. Because it is now silent, we just haven’t been paying attention.

So, why the need for this bizarre procedure?

Those who support the notion of filibuster would tell you that it protects the minority from being steamrolled by the majority in the Senate.

Those against argue that our system of government is all about majority rule, and if a majority of the Senate wants to vote for a bill, then the bill should be voted upon.

With health care reform in the Senate hanging by a thread, thanks to the likelihood that the current draft of the bill would be blocked by a filibuster, many are once again questioning whether such a procedure should exist in our democratic society. Not surprisingly, most of those questioning the practice right now are Democrats.

But that was not always the case.

Just four years ago, it was the Senate Republicans who were threatening to do away with the filibuster, a move met with great resistance from then Senate Minority Leader (today the Majoirty Leader), Harry Reid. At that time, it was the GOP Senate Majority Leader, Bill Frist, angry with the Democrats for blocking President Bush’s judicial nominations, who was threatening to use the ‘nuclear option’ – legislation to ban the filibuster.

In response, Reid threatened to shut down the Senate. Speaking on the CBS news program “Face The Nation’, Reid said,

This is the most radical notion we’ve heard, not only are they going to change the rules to the filibuster but they also have said they’re going to start impeaching judges.
Via New York Times

Now, the shoe is very much on the other foot.

So, is this procedure worth saving in order to protect the minority –  whichever party that may be – or is the filibuster a procedural proversion of democracy?

Personally, I don’t like it. While my sympathies may be with the Democrats, if the nation elects a majority of Republicans to the Senate, then the majority should win out. Same when the country sends a majority of Democrats. If we don’t like how the majority is behaving, it’s up to us to change the composition of the Senate.

What we are seeing in the health care debate is how one senator (are you listening, Joe?) can hold the entire United States Senate hostage. I don’t think that is the way it was intended to be.

For those wondering if last Saturday’s vote means that we are past the filibuster issue with respect to health care, we are most certainly not. The vote that took place on Saturday evening was only to determine whether the debate should be permitted to go forward. Had the GOP accomplished 41 votes, there would have been no debate and the bill would have died on the spot. However, there will be another procedural vote to determine whether the bill that is to be debated over the coming weeks will be permitted to go to a final vote. As we know, the opponents of the reform bill currently have in excess of the 41 votes needed to block the bill’s progress. The only chance that this will change is if the Democrats make enough concessions to win enough support in their own caucus to stop the GOP at 40 votes and invoke cloture. Assuming the GOP Senators hang together in opposition, any one of the Democratic senators threatening to vote against cloture can tank health care despite the fact that a majority of the elected senators would vote for such a bill.

I don’t think this is right. I think the Constitution requires a majority vote in both houses of the legislative branch. The House complies with this requirement – the Senate does not.

Should things develop in a way that finds someone like Joe Lieberman holding all the cards when it comes to deciding if this country will have health care reform or not, we may be in for some major changes in the Senate rules permitting filibuster.  To that end, House Member Alan Grayson, Democrat of Florida, has posted a petition online inviting people to express their desire that Harry Reid  change the rules of the Senate to require only 55 votes to invoke cloture.

That strikes me as a bit too convenient. Why 55? Because that solves the problem of the five senators we think will vote to filibuster the health care legislation? That doesn’t work. The issue is whether we should have this procedure or not.

I vote for ‘not’.

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