In Defense of the Filibuster
It seems a certainty that one of the first orders of business when the Senate convenes for the new session on January 5, 2011, will be some kind of reform of the rules governing the filibuster. Proposals have been floating around the Hill for several months and range from lowering the 60-vote threshold for cloture, to forcing filibustering senators to maintain control of the floor by making them speak.
Few would argue that the manner in which both parties over the last decade have abused the filibuster makes for good government. Reforms that encourage efficiency while still protecting minority rights may even be desirable. But the reasoning behind the use of the filibuster remains valid, even if we must occasionally put up with obstructionism and gridlock.
Is there anyone who doesn’t choke up a little watching Jimmy Stewart defend his honor and good name in Mr. Smith Goes to Washington by carrying on with a one-man filibuster for nearly 24 hours?
It’s silly, yes. And there is something that would have ended Senator Smith’s quixotic quest long before he collapsed in an exhausted heap on the Senate floor, the forces of evil seemingly triumphant against him: the call of nature. But at the time, Hollywood refused to recognize that humans had bladders or that there was even a need for a bathroom, so Jimmy Stewart was able to stand on the floor of the Senate for nearly 24 hours, reading recipes, quoting from the United States Code, the Bible, and any book within reach.
Finally, his voice raspy and weak, Stewart croaks out a paean to liberty in a peroration that is both schmaltzy and tearfully inspiring:
Just get up off the ground, that’s all I ask. Get up there with that lady that’s up on top of this Capitol dome, that lady that stands for liberty. Take a look at this country through her eyes if you really want to see something. And you won’t just see scenery; you’ll see the whole parade of what Man’s carved out for himself, after centuries of fighting. Fighting for something better than just jungle law, fighting so’s he can stand on his own two feet, free and decent, like he was created, no matter what his race, color, or creed. That’s what you’d see. There’s no place out there for graft, or greed, or lies, or compromise with human liberties. … Great principles don’t get lost once they come to light. They’re right here; you just have to see them again!
The problem with Mr. Smith’s filibuster wasn’t so much that it wasn’t realistic. Senator Huey Long (D-LA) carried on a one-man filibuster in 1935 against a bill to extend FDR’s National Recovery Act for 14 hours. Just recently, Senator Bernie Sanders (I-VT) spoke for 8 hours 37 minutes against the tax compromise. What made Mr. Smith’s heroic speechifying ridiculous is that the filibuster has rarely been used to uphold cherished principles, much less defend the republic from unscrupulous and crooked lawmakers.
Historian Peter Carlson:
The colorful history of filibusters is a smorgasbord of idealism, cynicism, egomania, buffoonery and, if truth be told, a great deal of blatant racism.
Indeed, Mississippi’s notorious racist, Democratic Senator Theodore Bilbo, filibustered a 1938 anti-lynching bill to protect “Saxon civilization.” Recently deceased Democratic Senator Robert Byrd personally filibustered the Civil Rights Act of 1964 for 14 hours. Numerous examples from the 19th and 20th centuries show that time after time, the House would pass legislation requiring equal rights for African Americans, only to see the bills languish in the Senate, filibustered to death by Southern senators.
One would think that with such a shameful past, simple justice would demand that the filibuster be consigned to the ash heap of history. After all, it’s easy to sympathize with the majority — Democrats now, Republicans prior to 2006 — when the device is used to obstruct the business of the Senate. There is an undemocratic stench that accompanies its use that is unbecoming of a great republic.
The dems would be foolish to gut the filibuster at this particular moment with the Republicans taking control of the House. Sure they will be able to ram a few more judges thru but the Republicans will retaliate by attaching all sorts of things to budget bills (hello debt limit).
A government shutdown is almost inevitable next year and this time I think the public will side with the Republicans if the issue is cutting spending.
I just think it’s interesting that you usually hear about getting rid of the filibuster whenever the Democrats are in the minority or have a very slim majority in the Senate (like they will have in January). Anyway, I think the filibuster should be kept. What is so terrible about slowing things down in Congress? If this current lame-duck session proved anything, it’s shows how many horrific pieces of legislation can be rammed through the Senate when there is a majority in one party and not enough votes there to stop it. I say slow it all down. The fewer laws these people can pass, the less damage they can do to the country. It is because Congress isn’t stopped, that they have the ability to pass so many stupid laws and regulations. This is what makes them so dangerous to our freedom. These Senators (in both parties) feel that they have to pass a lot of legislation to prove that they are doing something, when it should be quality over quantity. Anything to slow down this process would be helpful.
Lose some seats, lose the House, lose a degree of power, what’s an open minded, fair, honest liberal to do? Of course, change the rules.
Give yourself a few minutes to review all the about faces these psychos have done since gaining power.
For them there are no principles.
Take a step back and consider the context of a representative versus a direct democracy.
Chaperoning a group of five children at a theme park, letting them decide on the activities. Three only wanted one type, and were poised to win every “choice,” against the wishes of the other two. I suggested rather that we take turns in proportion three to two. That seemed inherently fair to all.
Indirect electoral college. Bicameral legislature with a non-proportional Senate and filibuster. That as part of tripartite federal government, balanced in turn by states’ rights. Government itself offset by institutions like Church, free press, universities, unions, civic groups like Boy Scouts and Salvation Army…
That’s how we get the children to play nicely together.
The problem with the use of the filibuster in the last century stems from the changed role of the Senate. Before 1913 the Senators were selected by their State Legislatures. The passage of the XVIIth Amendment converted the Senate from a council of ambassadors plenipotentiary sent by sovereign states in a federal system to a collection of glorified political operatives and elected functionaries in a unitary bureaucracy.
The role of the Senate has unfortunately become conflated in the popular imagination with the issue of racism. That was unfortunately caused by the efforts of leaders of the Democratic Party in the 19th century to first use the power of the federal government to defend slavery through the Fugitive Slave Act, then to weaken the government through nullification and finally to dissolve it through secession. The resulting Civil War reduced all the States’ authority and rendered them incapable of resisting the erosion of their role.
This was accelerated by two factors. First was the industrial and commercial expansion of the nation and the attendant corruption of state governments that discredited them. The second, which accompanied the corruption of the states, was the rise of the railroads and the expansion of the power of the federal government as Congress invoked the Commerce Clause. These combined to fuel the Progressive Movement that promoted the XVIIth Amendment.
This is how the States were turned into cogs in a centralized apparatus of administration. That process was accelerated under the New Deal and the corruption that had afflicted the States flowed up to infect the national government. Wherever there is money and power there will be corruption and abuse but the centralization of government and the expansion of the sums involved have dramatically expanded the venality of the participants while removing the protections that a jealous federalism had afforded.
Since there is no magic virtue that adheres to either employment in the federal or a state body all the vices of racism, corruption, and factionalism that afflicted the states and which a proper federal system could ameliorate are now concentrated in a central reservoir. The federal system was part of the “Forest of the Law” that sheltered individual Liberty as described by Sir Thomas More in Robert Bolt’s “A Man For All Seasons.” The Progressives cut down the forest when they enacted the XVIIth Amendment.
I think it’s important to note that despite the actual filibusters noted above, our history of civil rights legislation demonstrates that the actions of a few Senators amounted to nothing more than a short pause on the road to recognizing the promise of our ideals.
A wise man once said, “Make haste slowly.”
Since Democrats love to invoke international precedent, why don’t we look to the Polish Senate for inspiration before condemning the filibuster? They operate on Unanimous Consent, not to speed things up, but to get anything done. If any one Senator shouts, “I will not allow it!” the entire session and all legislation passed is nullified.
Good article and great comments. It is important to recognize the the Founders did not envision a two party system the likes of which we have today. My biggest problem with members of Congress (both parties) is where their fealty lies. There priorities seem to be as follows: Party > Special Interests and Lobbyists > their own morals and beliefs > the will of their constituencies. You can shoehorn in “reelection” into this algorithm but that priority varies by individual. We see far too many party line votes…particularly among Democrats. For too many Representatives the pressure to vote the party line far exceeds the moral dictate to vote the will of their constituencies (hell, they’ll forget by the time of the next election, the party won’t). As long as we have to endure Party rule we will have to have the filibuster.
So long as the federal governments Congress is embattled in ideological warfare rather than the nations “traditional” business, there has to remain a “tool” to slow down or avert the systemic advancement of socialist progressivism revolution inside the government. Traditionally, and by Constitutional intent, the [reconciliation] of all bills introduced on the floor should have been done in the Conference and Committee functions by both parties. Once moved to the “floor” the bill should only be offered for amendments of fine tuning…and of course political commenting for public posturing before voting.
However, today we find the majority party’s ram-rodding essentially their own bills void of any two-party reconciliation in conference and committee….and denying the opposing party to propose an opposing bill or amemendments. Given these rather more recent majority bullying tactics in conference, committee and on the floor, there is little any rules can provide to prevent a disfunctional and corrupted congressional process.
Bottom line! The congress is involved in far to much overreaching and unconstitutionaly legislating and has become totally corrupted. Rules changes will NOT correct this problem!
“it’s easy to sympathize with the majority”
Heck no it’s not! The more gridlock there is, the fewer terrible bills they’re shoving down our throats. Tell ya what, I’ll support scrapping the fillibuster entirely if we first reduce the House’s work year to a single month. They get 30 days to pass anything the majority wants, and the rest of the time can be spent talking to the people they pissed off in that month so they can fix it all the following year.
In the meantime, hurray for gridlock!