Filibustering in Historical Context
With the interpretation that Republican charges of Tom Daschle’s “obstructionism” regarding Bush’s judicial appointments played a key role in the Democratic leader’s defeat, Senate Republicans, led by Bill Frist, are toying with rewriting Senate rules to prevent filibustering against judicial nominees."This filibuster is nothing less than a formula for tyranny by the minority," the majority leader recently remarked. Conservative theorists, such as John Eastman, director of the Claremont Institute’s Center for Constitutional Jurisprudence and Ronald Rotunda of the Cato Institute, have embraced Frist’s crusade. Liberals, just as unsurprisingly, have resisted.
It is unlikely that the 109th Senate will make a more important decision: if Frist gets his way, the President will have a virtually free hand on judicial appointments until 2008.
Though the concept of a filibuster dates back to the 19th century, in the Senate since the Progressive Era, the filibuster passed through four distinct phases. The filibuster was rarely employed during the Roosevelt, Taft, and first Wilson administrations. Indeed, the first Wilson administration featured the opposite extreme, a structure similar to that of the current Congress: the use of the party caucus in a closely divided legislature, with the President passing two reform packages on almost straight party-line votes.
Wilson’s political mishandling of the U.S. entrance into World War I set the stage for ending the tradition of unlimited debate. Although an anti-war coalition had reelected the President in 1916, Germany’s resuming unrestricted submarine warfare in January 1917 placed Wilson in an impossible position. Reluctant to recommend outright war, he instead introduced a measure to arm U.S. merchant ships for self-defense. When the Senate’s left-wing contingent, the peace progressives (about which I’ve written elsewhere), filibustered to prevent the measure from coming to a vote, the President fumed, “A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.” In the resulting nationalist fervor, the Senate adopted Rule 22 that allowed debate to end with a two-thirds majority vote. The upper chamber then imposed cloture against the armed ship bill foes.
Adoption of Rule 22 ushered in the second, and most famous, phase of the history of filibustering. Southern foes of civil rights legislation consolidated their power by successfully arguing that the Senate, because only one-third of its membership changed with each election, was a continuing body, and therefore rules—including Rule 22—could only be changed by a 2/3 vote. Robert Caro analyzes the Senate of this era, which produced the longest filibuster in American history (Strom Thurmond’s 24-hour-plus rant) but ultimately the crushing of the Southerners’ power with the imposition of cloture for the Civil Rights Act of 1964.
By this point, the third era of 20th century filibustering already had begun, with ideological dissenters (of either the right or left) targeting legislation that they deemed unacceptable with filibusters. Few now recall that the Senate’s second imposition of cloture occurred not with the 1964 Civil Rights Act but against the so-called “liberal filibuster” of 1962, when a small band of Senate dissenters, led by Albert Gore, Sr. (D-Tennessee), Paul Douglas (D-Illinois), and Ernest Gruening (D-Alaska), fought a Kennedy administration measure to establish the Commercial Satellite Corporation, a partnership between the government and AT&T to fund the first commercial satellite structured on terms very favorable to AT&T.
Despite his key role in weakening the filibuster with the Civil Rights Act’s passage, Lyndon Johnson had an agnostic attitude toward the tactic: if doing so advanced his agenda, he had no problem recommending a filibuster. On August 19, 1964, just five days before the start of the year’s Democratic national convention, the House passed a bill sponsored by Virginia’s William Tuck to deny to the Supreme Court the right to review court decisions concerning reapportionment and to block district court jurisdiction over any apportionment question. After Majority Leader Mike Mansfield announced that the Tuck bill would be pending business when the Senate returned after the convention, Paul Douglas (an economics professor before he entered the Senate) and Pennsylvania liberal Joe Clark urged the President to support a plank in the Democratic platform upholding the Supreme Court’s authority on reapportionment issues. Johnson, correctly recognizing that doing so would needlessly alienate Southern delegates, refused to do so. Then, when Bill Moyers reported that Anthony Lewis, the New York Times reporter known for his close ties to Attorney General Robert Kennedy, planned to file a story on the reapportionment issue, the President had heard enough. In colorful terms, he gave Moyers a message to relay to Lewis: liberals could accomplish their goal by filibustering for two weeks, after which Mansfield would have to set the amendment aside. (The audio clip is just over one minute, and starts with LBJ hilariously giving his opinion of college professors.)
Conservatives more often than liberals used the filibuster after the Democratic landslide in 1964. In the wave of procedural reforms following Watergate, the Senate in 1975 reduced the required vote for cloture to 60 senators, and, citing efficiency, allowed senators to block action on legislation merely by invoking the right to filibuster, without actually having to engage in one. As with many Watergate-era reforms, this one produced unintended consequences: Julian Zelizer, author of a sensational new book on the postwar Congress, recently noted that with the procedural change, “the filibuster exploded, and became a normal tool of political combat.”
So, how does Frist’s effort to restrict the filibuster hold up in light of this historic record?
1.) Frist’s argument that allowing filibusters on court nominees violates the constitutional requirement that the Senate advise and consent to such nominations is absurd.
2.) On the other hand, his contention that the filibuster is anti-majoritarian and that the Senate should not be considered a continuing body is identical to the argument that liberals offered in the 1950s.
3.) Also valid is his claim that the filibuster has been used in recent years far differently than in the past, and in a way few could have anticipated in 1975, when the current filibustering rules were established.
4.) But, as congressional scholar Norman Ornstein notes,"Having a system where an intense minority has a say is a good thing.” In this highly partisan Senate, where there is no reason to believe that without the threat of filibuster any Bush judicial nominee will even get closely examined, much less rejected, maintaining the current filibuster rule probably represents the only way for the Senate to play a meaningful role in the confirmation process.
Julie A Hofmann - 1/1/2005
... but whenever I think of filibusters, I think of Jean Arthur cheering on Jimmy Stewart, and it's all OK.
Julie A Hofmann - 1/1/2005
I guess I think that a better educated electorate would be more apt to cry 'foul' on bogus campaigning. At present, there's precious little between the mainstream wings of the parties. I'd hope that education would spark a continued interest and that people on either side would start to really ask themselves how well the parties represent them. With a more critical electorate, perhaps the parties would actually go out on a limb a bit more and try to stand for something meaningful (other than the 'we're not them' that we get now). I just get tremendously discouraged when I think that the campaigns, debates, etc., are more about sound bites and repetition of half-truths than an actual discussion of the issues.
Ralph E. Luker - 1/1/2005
Julie, I don't see why one would think that a better educated electorate would mean an end to close elections! Well educated people can see things differently and might be closely divided about the differences. I just don't see closely contested elections as a sign of something to be terribly worried about.
Jonathan Dresner - 12/31/2004
It's not the closely contested elections that bother me, so much as it is the failure of those who are elected to govern as though they recognize that they were elected by a narrow margin, and the tendency to entrench power instead of maintaining something like a level playing field. Though you're right: I'm much more inclined than you to consider systemic adjustments viable routes to achieve that goal.
I fully agree with the idea of carefully collecting and counting valid votes: actually, that might take more than "tinkering."
Julie A Hofmann - 12/31/2004
Of course, I also think we should push for more and better history and civics education, because I think a better educated electorate that understood what a privilege it is to vote might make such close elections a thing of the past -- or make a thrid party viable. But then, I'm an idealist!
Ralph E. Luker - 12/31/2004
I'm inclined to agree with Julie on this. If I'm not mistaken, I think that Jon Dresner has tended to see closely contested elections as indicators that we need to tinker with the system some more. I think I disagree with that. A close election doesn't mean that you need to put all kinds of new mechanisms into place. It simply means that we need to count every legally cast vote and count the totals _very_ carefully.
Julie A Hofmann - 12/31/2004
I am so sick of this nonsense. Perhaps this is because I live in a state where the governor elect changed after two recounts and the now-loser is asking for do-overs because "people have lost faith in the system". Oddly, I find that that I have much more confidence in the system now than I did before, and would feel exactly the the same way had the Republican canditate won the last recount. But then, I think that the political rhetoric of the right especially has become more and more Orwellian since Reagan was in office. Call me naive, but I like the idea that, in such a closely divided government, the system is set up to force compromise.
Richard Henry Morgan - 12/31/2004
I indeed can imagine what the Republicans would be saying. They would undergo that rapid and convenient conversion that charaterizes people as their interests are implicated -- the elevation of interest to principle. Consider the recent spate of commentators shocked , shocked I say, that gerrymendering takes place in state legislatures, an obvious threat to the Union, no doubt, but a threat not so recognized when their opponents' ox was being gored.
Jonathan Dresner - 12/31/2004
I consider Republican party discipline to be one of the wonders of the modern world, frankly. It needs serious study, but that won't be possible until some of the main actors are our of public life. (or someone gets subpoena power.....)
Robert KC Johnson - 12/31/2004
Don't think we'll be seeing that any time soon! It is interesting to see how the two parties have flipped over the value of the filibuster: in the 1980s, the Dems denounced it and the Repubs regularly employed it. Now we're at the reverse.
The one important difference between the two eras, as Jon's comment suggested, is the remarkable party unity of the Senate Repubs.
Jeff Vanke - 12/31/2004
... a constitutional amendment requiring a super-majority of two-thirds to approve judicial nominees.
Jonathan Dresner - 12/31/2004
...what the "conservative" side of the chamber would be saying if it were Democrats with a slight majority trying to eliminate filibusters?
I know the Republicans-as-fascists thing is supposed to be passe now that the election is over, but I just can't help but remember the legislative maneuvers made by various fascist parties allowing them to turn bare majorities into overwhelming power.