Why Getting Rid of the Filibuster Is Still a Good Idea
By opposing the proposal of Sen. Bill Frist, the Republican Senate majority leader, to prohibit filibusters against judicial nominees, Democrats will miss a massive opportunity to reform one of the most outdated and anti-majoritarian practices in American politics. And, as liberal Democrats who attacked the Electoral College after the 2000 election reminded us, majoritarian democracy can be a good thing.
If Democrats are searching for a reason to support filibuster reform, they can look at their own history. In the 1960s and early-1970s, liberal Democrats and Republicans attacked the filibuster as anti-democratic, inefficient, and a symbol of legislative incompetence. Liberals in the earlier post-World War II period were even bolder in their aspiration. Their goal was to transform the Senate into a strictly majoritarian institution where a simple majority of senators could end a filibuster and pass a piece of legislation.
Late in the 1950s, liberal giants in both parties, such as Hubert H. Humphrey, Jacob K. Javits, Paul H. Douglas, Joseph S. Clark and Walter F. Mondale made filibuster reform a top priority. It became so important that civil rights organizations in the 1950s placed committee and filibuster reform at the top of their political agenda. The NAACP listed filibuster reform as important as ending lynching.
This struggle culminated in 1975 when Republican Vice President Nelson Rockefeller intervened in Senate deliberations and allowed the reform to pass. Although reformers did not obtain a strictly majoritarian system, senators made it easier to end a filibuster by requiring that three-fifths, rather than two-thirds, of the Senate was needed to obtain cloture (the process by which a filibuster is ended).
Opponents, such as the conservative southerner James Allen, warned that the change would bring havoc to the institution. Reformers praised the change. A few liberal voices were disappointed that the filibuster survived at all.
Today's Democrats can learn from this older generation of liberals in the 1950s and 1960s who argued that the filibuster was fundamentally anti-democratic, especially since the Constitution, undemocratically, already granted small and large states equal representation in the Senate.
In his first year as a senator, Humphrey enraged southern conservatives by championing civil rights and legislative reform. He went so far as to call the"undemocratic" filibuster"evil." In the 1950s, the filibuster was the ultimate symbol of how procedure blocked action on civil rights. Writing for the New Republic, Sen. Douglas explained that filibuster reform may seem to be"a barren and arid matter of parliamentary procedure. It involves, however, the whole question as to whether Congress will ever be able to pass civil-rights legislation."
The filibuster, according to its critics in the 1950s and 1960s, was a major reason that the executive branch gained power over the legislative branch. They argued that the inefficiency of the filibuster facilitated the"imperial" power of the presidency. Given that a supermajority -- that is, 60 votes -- is needed to pass legislation, Senate deliberations are an agonizing process. Minnesota's Walter Mondale lamented to colleagues that filibusters"impaired" the ability of the institution to function.
Liberals of the postwar period also liked to remind colleagues that the filibuster symbolized what many Americans disliked about their legislative branch. A moderate Republican, Robert Packwood of Oregon, pointed out that the filibuster was the favorite media example of how Congress did not work. He was right. In 1964, CBS correspondent Roger Mudd reported outside the Senate every night with a clock superimposed next to his face to symbolize how long it was taking the Senate to reach a decision.
Filibuster reform has a rich liberal tradition. Although liberal Democrats might lose some key judicial battles as a result of filibuster reform, the change proposed by Republicans would make the Senate more responsible to the majority of Americans. In the long run, it would bring the Senate more in line with 21st-century understandings of democracy.
This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.
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Hans Vought - 5/3/2005
Article II, Section 2 only requires a 2/3 majority of the Senate to ratify treaties. It does NOT require a 2/3 majority of the Senate to confirm presidential appointments, whether to executive branch positions or to the judicial branch.
The filibuster is not provided for in the Constitution at all, of course. It is a procedural maneuver made possible only by the rules of the Senate, and those rules may be changed at any time by the Senate.
Don McArthur-Self - 5/3/2005
One correction to Mr. Tucker's comment: the Republican controlled House under Gingrich did pass legislation granting a Democratic president the line-item veto. The Senate also passed it and Clinton signed it. The courts ruled the line-item veto unconstitutional in that it gave the president a veto power beyond that granted by the Constitution itself.
Max J. Skidmore - 5/3/2005
Interesting discussion; Prof. McNamara is correct that the filibuster can be used for good or ill.
Prof. Robinson, though, should be reminded that, although the GOP is proposing to end it only for judicial nominations (those lifetime appointments), success in that regard would establish a precedent for closing off debate on any topic by majority vote. If the "nuclear option" can succeed when the subject is a confirmation, there is no reason why it could not succeed at any other time a majority desires. It is naive--or deceptive--not to recognize (especially in politics) that "what goes around, comes around."
Kevin R. McNamara - 5/3/2005
If we want to respect majorities, we need to reform the Senate, not assume that a majority of senators necessarily represents anything like a majority of the American population.
Besides, any argument about results in a particular cse is beside the point. The filibuster is indifferent to policy: it can be used toward progressive or regressive ends. It's virtue, if it has one, is that it requires a broader consensus in place of a razor thin (if that) majority.
Alonzo L Hamby - 5/2/2005
I can only assume Mr. Kislock is having a little joke at our expense by rearranging phrases from Art. II, Sec. 2. Perhaps also he is having another little joke by implying that Hitler came to power by majority vote. He did not, and the Nazi party never polled a majority in a free election.
Thanks to Julian Zelizer for a smart article. Liberal Democrats need to be asking themselves how they have painted themselves into this corner instead of keeping on painting.
Greg James Robinson - 5/2/2005
What Professor Zelizer seems not to understand, or carefully conceals, is that the Republicans are NOT proposing doing away with the filbuster entirely (something which would probably alarm their supporters more than the Democrats'). Rather, they propose only to eliminate the filibuster in the case of judicial nominations. There might be a case for broad-based elimination of the filibuster, as loathsome as the results would be in the short term of right-wing Republican rule. The filibuster has been frequently abused by an organized minority to block essential legislation (although the shift from two-thirds closure vote to a three-fifths may well have obviated the worst effects of filibustering). However, to eliminate it only in this one, relatively small set of cases is clearly a move to eliminate legitimate opposition to dubious appointments rather than to extend democracy.
Stephen Francis Kislock III - 5/2/2005
Thrusday, February 03, 2005
"President Bush's Place in History"
"O'Really: All right. Professor Zelizer, what's the downside here? If the president--if things stay the same as they today, no resolution of Social Security, an OK economy, not great, and still a lot of strife around the world, President Bush comes looking how?"
"ZELIZER;ect. "If things go really poorly for him and Democrats regain power and this conservative revolution is reversed, Ithink he could go down--and this is a real threat--etc.
A True Majority Rule type of Guy!
Stephen Francis Kislock III - 5/2/2005
Stephen Francis Kislock III - 5/2/2005
In their desire form a more perfect union, did they want a Republic or simple majority Rule?
Article II, section "and he shall nominate, and by and with theadvice and consent of the senate, shall appoint, ect. judges of the Supreme Court, and all other officers of the United States whoes appointments are not herein otherwise provided for, etc..
"Provided two-thirds of the senators present concur".
The Founding Fathers were Much Smarter, than you. Majority Rule can and does lead to the rise of Hitlers. A Republic is what we have,not just Republicans!
Stephen F. Kislock III
Charles Christopher Tucker - 5/2/2005
My subject line some may recall as being quoted in Burns' documentary on the Civil War as being from one North Carolina citizen to his state senator.
Majoritarian rule seems like a lovely idea, when you are in the majority. It's not a sure-fire way of governing. The framers of our constitution were pretty certain of the lack of good sense in raw majority when they set up our current system.
My question, the one that fails to get mentioned by reporters when they interview Republicans, is "What happens when you aren't the majority party anymore?"
How sure will Bill Frist be if the Democrats have a one vote majority in the Senate again that the majority should rule?
Recall, if you will, some of the terms of the "Contract With America". Term limits and line-item veto were a couple of the points that Gingrich used as selling points. Of course, those sounded like great ideas to Republicans, so long as the term limits only applied to Democrats who beat their candidates every election and line-item vetos sounded great, so long as no Democratic party candidate was the President. Both measures went up in smoke faster than Gingrich's own term as Speaker.
Getting back to where I took my subject line from should black persons have remained slaves? In the southern states the majority of votes were for candidates who were pledging to keep them as slaves. Did that make it right? It wasn't the majority of the population, but even today we don't have a majority of the eligible voters voting for either candidate in a Presidential election. Of course Jeb Bush is doing his part to make sure the descendants of those slaves aren't given a voice in the government any more than they had in 1860, but that's seemingly okay with his brother.
I don't see filibuster reform helping the cause of those descendants. I don't see it helping to overcome the lack of civil rights enforcement that exists today. I see it only benefitting the all-white evangelical audience that Frist addressed a week ago via video.
Without filibsuter it won't matter if a Mr. Smith goes to Washington. Washington will be only for those with money and power.
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