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.

But the United States Senate is itself an undemocratic institution in that each state is allowed two senators whether the population is 550,000 (Wyoming) or 36 million (California). Prior to the passage of the 17th Amendment, senators themselves were not even directly elected by the people, being chosen by their state legislatures. The argument that the filibuster is undemocratic just doesn't hold water. Any device that curtails the power of the majority would be equally "undemocratic" if one were to get technical about it and rely on "majority rule" as the basis for an Athenian style democracy.

For all its abuse both today and in our history, the filibuster still fulfills a vital role. Robert Byrd said about the filibuster, "The framers of the Constitution thought of the Senate as the safeguard against hasty and unwise action by the House." The Founders -- men of property all who feared the passions of the "mob" as much as the potential tyranny of the executive -- saw the Senate as a brake on the unruliness of the people.

Of course, we don't see it that way today, but the principle is sound: the filibuster encourages prudence in lawmaking.

Prudence is a lost civic virtue, what with 3,000-page health insurance reform bills, 2,000-page financial regulation reform bills, and a host of other measures, the consequences of which congressmen and senators hadn't a clue when they passed them. We are already suffering the effects of this monumental imprudence and will continue to be surprised and angered by what this Congress wrought over the last two ruinous years as the repercussions of passing legislation without reading it, without understanding it, and with little regard for the future reverberates across the country.

It's true that the filibuster has been abused this past decade, being employed to obstruct the appointment of federal judges (both parties), the DREAM Act (Republicans), oil drilling in ANWR (Democrats), and various other legislative initiatives deemed worthy by the majority at that time. It is also true that the reasoning of the minority in employing the filibuster is not always noble, oftentimes being obstreperous for the sake of denying the chief executive of the other party a significant political victory.

But just because it has been abused in this manner, does that necessarily make the case for the filibuster's total demise? Does the fact that the existence of the filibuster makes the job of the majority that much more difficult obviate its necessity?

Passing gargantuan "reform" bills that alter the relationship between the citizens and the government like national health insurance reform should be hard to accomplish -- must be made as difficult as possible to be realized. Even in this deadly polarizing political climate, a good leader would have found a way to satisfy at least some of the concerns of the minority on health insurance reform and overcome a filibuster.

Instead, a parliamentary gimmick was used to bypass minority rights and the most imprudent legislation in modern congressional history was passed with a bare majority of the Senate voting in favor. No doubt when the tables are turned and Democrats are out of power -- a prospect that appears to be possible sooner rather than later -- the Republicans will attempt the same trick and we will hear the same howls of outrage emanating from the Democratic side of the aisle about "abusing" the rights of the minority.

The United States is not a "pure" democracy. We are a federal democratic republic where institutions and traditions have been carefully built up over 222 years to govern our passions and protect each other from the worst that we can do to one another. The filibuster is a block on those passions, and a guarantee that even a large majority will not be afforded the opportunity to violate the minority. It may not usually work that way. But it's a fine design, and at least the principle of the filibuster should remain intact in any effort to reform the process.