Whatever Happened to the Old-Fashioned Jimmy Stewart-Style Filibuster?
In 1932, Huey Long, the notorious Senator from Louisiana, was fighting part of President Roosevelt's New Deal with one of his well-known filibusters. After reading and interpreting the Constitution, which he thought the New Deal had "turned into ancient and forgotten lore," Long offered up some of his favorite recipes-fried oysters and potlikkers. After 15 hours, he lost the floor when he had to use the toilet, and the legislation he was filibustering passed. Nowadays we rarely, if ever, see such a filibuster. This has left many wondering where it went.
Part of the problem in understanding the filibuster is one of definition. Many of us developed our notion of what a filibuster entails from Mr. Smith Goes to Washington. L.A. Times reporter Janet Hook recently summed up the layman's understanding of the filibuster as "the storied Senate tradition of blocking a bill by talking." Donald Ritchie, Senate historian, explains that the best definition of a filibuster "is a minority of Senators who prevent the majority from casting a vote, knowing otherwise the majority would prevail." According to Ritchie, there are many different ways of filibustering a bill, including placing a hold on a bill or nomination; not reporting the bill or nomination out of committee; objecting to unanimous consent agreements that would allow the Senate to proceed; being absent during quorum calls to prevent the Senate from obtaining a quorum to do business; or voting against a cloture motion.
The original idea of a filibuster, from Dutch freebooter or pirate, developed from the senatorial tradition of unlimited speech. The Senate's rules have always allowed Senators to speak for as long as they wished. Senator John Randolph of Virginia was the first to use this to prevent legislation from passing. Randolph led this first filibuster against a bill proposed by President John Quincy Adams in 1825 because the measure allegedly favored the industrial North over the rural South. At this time, there was no way to stop his filibuster under the rules then in effect.
The change in the rules came about in 1917 when a bill in support of the war was blocked by a group of eleven Senators led by Robert La Follette (R-WI). President Woodrow Wilson, upset at the ability of an intransigent few to affect matters of global importance, lobbied for a change in the rules. The Senators, not wanting to abolish their right to unlimited speaking time, passed Rule XXII. At this time, Rule XXII required a two-thirds majority of those Senators present to invoke cloture on a matter on the floor of the Senate.
Cloture helped prevent some filibusters, but not all of them. As Robert Caro explains in Master of the Senate, there was a loophole in Rule XXII, which allowed cloture to be invoked only on bills on the floor but not on a motion to bring a bill to the floor. This loophole played an important role during the debate over civil rights legislation in 1949 when Senators from the South, led by Senator Richard Brevard Russell Jr. (D-GA), used the loophole to filibuster against the bill. They were able to do this because of the timeliness of legislation such as rent control, where the governing law was about to expire. Rent control seriously affected a large percentage of Northern voters and forced the hand of some Northern Senators to vote with the South. After defeating the Civil Rights bill Russell proposed a compromise that allowed for cloture on motions to bring a bill to the floor, but two-thirds of all Senators, not just those present, had to vote (this was changed to three fifths in the 70s).
This did not stop Senators from the South from filibustering civil rights bills, which resulted in legislative bottlenecks. Once South Carolina's Strom Thurmond filibustered for twenty-four hours and eighteen minutes against the Civil Rights Act of 1957. Majority Leader Senator Mike Mansfield (D-Montana), spearheaded the adoption of a new Senatorial procedure. Mansfield created a system that would technically maintain the Senate's tradition of unlimited debate but would prevent a legislative logjam. This system is known as the "two-track" system. In this system, if one issue or "track" is being filibustered, the Senate can switch to another track in order to deal with other pending business.
Even this did not stop Southern Senators from filibustering the civil rights legislation in 1964. However, the majority realized they had a super-majority to invoke cloture and were determined to pass the legislation. These Senators, therefore, did not use the "two-track" system. The Southern Senators held out for fifty-seven working days, including six Saturdays, before cloture was invoked and the bill was passed nine days later
Since the 1960s the "two-track" system devised by Mansfield has prevailed, preventing old-fashioned filibusters. As John W. Dean, President Richard Nixon's former White House counsel, has written: "On the one hand, the two-track system strengthened the ability of the majority to withstand a filibuster by enabling it to conduct other business. On the other hand, it made it easier for the filibustering minority, which did not have to constantly hold the floor."
The "two-track" system appears to have changed the culture of the Senate and seems more suited to the age of soundbites and a heavy legislative workload. When there are filibusters, they are usually scheduled so that other Senate business isn't delayed. Usually, however, if a filibuster is threatened, the leadership won't even attempt to bring the issue to the floor unless it is sure it has the support of at least sixty Senators (three-fifths). In essence, the filibuster has changed from a noisy propeller airplane to a silent Stealth Bomber. The merits of the modern filibuster can be debated endlessly, but it continues to play its historical role in the Senate in giving extra power to the minority, especially nowadays in a closely divided Senate, which needs a super-majority for highly contentious matters.
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F.H. Thomas - 11/18/2003
Thank you for asking the right question, often the most important step to knowledge.
While filibuster has been used in the debates over slavery, western expansion, war declarations, and other momentous issues, in the distant past, it is today an instrument of constitutional obstructionism, and culture war. The left wishes to enact laws not by passing them, but by preventing constitutionalist judges from entering the judiciary, so that the leftist agenda is enacted through the back door, by leftist judges. I do not believe that this institutional artifact, the filibuster, has much of a future, given this environment.