The Filibuster in the Broken Senate

by Stanley Meisler

March 7, 2010

filibuster - the use of extreme dilatory tactics in an attempt to delay or prevent action especially in a legislative assembly.
source: Merriam-Webster Dictionary

It is hard to disagree with Senator Evan Bayh of Indiana about the sorry state of Congress. It is gripped by “institutional inertia,” it is not doing “the people’s business,” and it “must be reformed.” But his decision to run away from the Senate will not ease the paralysis. In fact, if a Republican takes Bayh’s seat, the woes will probably worsen.

In a piece for the New York Times, Senator Bayh listed a host of congressional problems, including ultra partisanship, campaign financing, gerrymandering, lack of personal contact, and endless filibusters. The last problem, surely the most outrageous, should be the easiest to fix. Yet I am not sure there is much of a chance to do so.

Actually, it is kind of unfair to call filibusters the problem. There has not been a real filibuster in the Senate for many years. But a distortion of the history of filibustering has led to a situation where nothing important can pass in the Senate without 60 votes. Newspaper stories even talk about a bill failing to win the “required” 60 votes. But those 60 votes are technically required not to pass the bill but to prevent a phantom filibuster. The bill itself needs only a simple majority of those voting to pass.

This 60-vote goalpost is not a hallowed tradition of the Senate. It became necessary for a few bills a year during the 1970s, grew more frequent in the 1980s and 1990s, and turned into a vital part of Senate legislating in the 21st century.

In the last three years, the Republican minority has forced the 60-vote requirement — by threatening a filibuster — so often that it has become more or less automatic. There were 112 of these votes in the 2007-2008 Senate. During the Lyndon Johnson Administration, when he pushed civil rights and War on Poverty legislation through Congress, there was an average of fewer than three votes a year to shut down filibusters in the Senate.

Some political philosophers might think it not unwise to require a supermajority of 60 votes in the Senate for it is, after all, supposed to be the more thoughtful and deliberate chamber of Congress. But the Senate is already wildly skewed in favor of a minority of Americans.

The constitutional allotment of two senators to every state, no matter what size, discriminates against the large states in proportions far beyond what prevailed when the thirteen original states ratified the Constitution. In theory, the 26 smallest states, with a population of 50.8 million or 17% of the US population, can now control a simple majority of 52 votes in the Senate. If you require every major legislation to have 60 votes, the 21 smallest states, with a population of 34.1 million or 11% of the national population, can block any legislation with their control of 42 votes.

In short, the present arrangement in the Senate gives one out of ten Americans the power to thwart the others. The 21 smallest states that control 42 votes have a total population that is smaller than that of California with its two votes. There is no rational democratic argument for keeping the 60-vote requirement in place.

The filibuster is at the heart of the issue. The Senate has long prided itself on its tradition of so-called unlimited debate. This meant in the past that an individual senator or a bloc of senators could try to thwart a bill by talking against it without stop.

Filibusters came in two sizes. In the most dramatic, a single senator would stand up and block the business of the Senate by talking without stop. These lone rangers would become heroes to some of their constituents. Senator Wayne Morse of Oregon, who declared himself an independent and later a Democrat after election as a Republican, spoke against an oil bill for 22 hours and 26 minutes in 1953 before giving up. This kind of filibuster, mounted by heroic Jimmy Stewart, is the backbone of Frank Capra’s 1939 movie classic, “Mr. Smith Goes to Washington.”

The second kind of filibuster involved a band of senators, united by party or cause, joining together to oppose legislation favored by the majority. The business of the chamber could be tied up for many days until either the band gave up or the majority withdrew the legislation. This kind of filibuster often had an unsavory odor because it was used mainly by Southern Democrats to frustrate the passage of civil rights legislation.

Since 1917, the Senate has had an instrument known as cloture that could shut off a filibuster. At first that required a two-thirds majority of those voting. From 1917 to 1964, it was used successfully only five times and never against a civil rights filibuster. In 1964, however, Republicans joined northern Democrats to end a 57-day filibuster against the landmark Civil Rights Act that protected voting by African-Americans and prohibited racial discrimination by restaurants, hotels, theaters and other public facilities. The cloture vote was 71 to 29.

In the old days, senators paid a price for their filibusters, both in stamina and scorn. Speaking for many hours was fatiguing, especially for elderly senators. Cots were brought to the Capitol so they could nap between orations. Other senators seethed that they had to attend sessions to make sure that the filibusterers kept talking. Senators treated the obstructionists like pariahs. Reporters hounded them. The opposition party accused them of standing in the way of progress.

Senators also had to contend with history. The urbane and professorial Senator William Fulbright of Arkansas, one of the most respected men in the Senate, exposed a flaw of character and a streak of cowardice by joining the 1964 filibuster out of fear that he would lose his seat if he declined. What he did lose was any chance of ever serving as secretary of state. Senator Robert Byrd of West Virginia, now the longest serving senator, will always be infamous as the one who delivered the last speech of the 1964 anti-civil rights filibuster, a speech that lasted 14 hours and 13 minutes.

In 1975, a year after President Richard Nixon resigned in the Watergate scandal, a mood for reform engulfed Congress. Liberal Democrats, led by Senator Walter Mondale of Minnesota, the future vice president, persuaded the Senate to make cloture easier. The Senate decided to change the vote required for cloture from two-thirds of those voting (67 votes if the whole Senate voted) to three-fifths of the membership of the Senate (60 votes).

But this reform not only made cloture easier. It made filibusters easier as well. Since cloture was more possible than ever, a practice arose of using it even before a filibuster began. The minority simply served notice that it planned a filibuster. The majority swiftly called for a cloture vote. If there were 60 votes in favor of shutting down the threatened filibuster, the bill was then put to a vote and passed by a majority. If cloture fell short of 60, the bill was withdrawn.

This gentleman’s agreement has now been abused by the Republican minority’s incessant demand for 60 votes for every important bill, setting off calls for reform. Proposals include abolishing filibusters altogether, limiting the number of filibusters in a session, reducing the cloture vote from 60 to 55, allowing filibusters on the main bill but not on amendments.

But the Democrats are unlikely to try to change the rules. They found the threat of filibuster a vital legislative weapon when they were in the minority during much of the George W. Bush administration. The Democrats used it mainly against some of Bush’s appointments and managed to force him to withdraw some noxious ones. This so frustrated the Republicans that its leaders threatened to change the rules and eliminate the need for 60 votes on judicial appointments. This was headed off by a coalition of 14 Republican and Democratic senators who made themselves the arbiter of judicial appointments and filibusters.

Nevertheless, one obvious change should be made. The era of phantom filibusters must come to an end. It should not be enough just to threaten a filibuster. If senators want to filibuster, they should stand up and talk for hours on end. They should once again pay a price for filibusters. If Republicans threaten a filibuster, Democratic leaders should simply say go ahead and filibuster.

This would surely greatly reduce the need for invoking cloture with 60 votes. Republicans have threatened almost 50 filibusters in this session of Congress. They would not have done so if they had to stand up and hold the floor of the Senate for days each time. They would have faced cries of obstructionism. The media would have publicized every wasted minute.

If filibusters had to be real and exhausting not phantom, the specter of public disgust would surely limit them to a few each session, perhaps only one or two. Passing legislation would no longer always require 60 votes. Going back to the boring old days could be a step forward.

March 7, 2010
Washington DC

see also:

Dark Election
November 17, 2014

My Role In the Presidential Election of 1960
December 22, 2012

A Hopeful End to a Shameless Campaign
November 11, 2012

Race and the Election
September 7, 2012

The Intellectual Congressman
August 25, 2012

Washington Out of Whack
August 4, 2011

Belated Thoughts on an Awful Election
November 14, 2010

Very British Republicans
December 28, 2009

Inaugural Fog
January 31, 2005

Bitter Returns
November 3, 2004

The Hidden Bush
August 10, 2001

Reflections on the Election of George W. Bush
December 18, 2000

Some Reflections on Impeachment
January 1, 1999

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