Cloture is for wussies: make Mr. Smith filibuster

Posted by AzBlueMeanie:

I read an interesting post by Jean Edward Smith in a New York Times blog Filibusters: The Senate’s Self-Inflicted Wound that discussed the history of the filibuster and the 60 vote cloture rule in the U.S. Senate.

[President Obama] must contend with a worrisome new feature in American politics: the trivialization of the filibuster in the Senate. A simple majority vote no longer suffices to pass major pieces of legislation. Instead, in almost every case, the Senate must muster at least 60 votes (a “supermajority”) to close off debate. And because of a rule the Senate adopted relating to deficit spending, it took another 60 votes to pass the stimulus package last month.

Historically, the filibuster was a last-ditch tactic used by an obstructionist minority to prevent passage of a bill by taking advantage of Senate rules that permitted unlimited debate. A measure would simply be “talked to death.” It was widely regarded as misuse of the rules, and was used sparingly.

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In the entire 19th century, including the struggle against slavery, fewer than two dozen filibusters were mounted. In F.D.R.’s time, the device was employed exclusively by Southerners to block passage of federal anti-lynching legislation.

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In the eight years of the Eisenhower administration, only two filibusters were mounted. Under Kennedy there were four. The number more than doubled under Lyndon Johnson, but the primary issue continued to be civil rights. Except for exhibitionists, buffoons and white southerners determined to salvage racial segregation, the filibuster was considered off limits.

With the successful passage of landmark civil rights legislation, however, things began to change in the 1970s.

Increasingly senators of all ideological persuasions began to consider the filibuster an acceptable weapon. By the time of the Carter and Reagan administrations, the frequency of filibusters had increased to 20 per year. “Filibusters are a necessary evil,” said Senator Robert Byrd of West Virginia said in 1988. “They must be tolerated lest the Senate lose its special strength and become a mere appendage to the House of Representatives.”

It was during the Clinton years that the dam broke. In the 103rd Congress (1993-1994), 32 filibusters were employed to kill a variety of presidential initiatives ranging from campaign finance reform to grazing fees on federal land. Between 1999 and 2007, the number of Senate filibusters varied between 20 and 37 per session, a bipartisan effort.

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The routine use of the filibuster as a matter of everyday politics has transformed the Senate’s legislative process from majority rule into minority tyranny. Leaving party affiliation aside, it is now possible for the senators representing the 34 million people who live in the 21 least populous states — a little more than 11 percent of the nation’s population — to nullify the wishes of the representatives of the remaining 88 percent of Americans.

There is an historical explanation for this:

In the United States the House represented the interests of the people, and the Senate reflected the will of the states. Until the adoption of the Constitution’s 17th Amendment in 1913, United States senators were elected by state legislatures. Indeed, senators were considered representatives of state governments, not the people. Equality among the states had been the basis of union in 1787, and for that reason it may have been justifiable to afford a significant number of states a veto over national policy.

But with the direct popular election of senators, all of that changed. Senators no longer represented state governments, they represented the people. The rationale for providing states a veto through the use of the filibuster no longer obtained.

In 1917, with two-thirds of the Senate having been elected by popular vote, the first dilution of the absolute authority of the filibuster was achieved. The Senate adopted Rule 22 to permit cloture to be imposed (limiting debate) if two-thirds of the Senate agreed.

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But invoking cloture proved difficult. Between 1919 and 1960, 23 attempts to close off debate were mounted, and only four were successful. In 1975, Rule 22 was amended to allow 60 senators, three-fifths of the Senate, to close off debate. The results have been better, but not markedly so. In the 108th Congress (2003-2004), cloture was attempted 49 times and was successful only12. What is more disheartening is the growing frequency with which the filibuster has been resorted to. In the most recent Congress, 112 filibusters were mounted, and 51 were successful.

The author is using the cloture rule and filibuster interchangeably, and this is not entirely correct. The Rules Committee will adopt rules for debate which usually, but not always, includes the right to invoke cloture under Rule 22. This is not a filibuster per se, but merely a procedural hurdle, however the effect is the same. An actual filibuster would require a senator to "talk to death" a bill as was the original Senate practice.

[T]he use of the filibuster as an everyday tool of legislation stands the idea of democratic government on its head. Instead of majority rule in the Senate, the tyranny of the minority prevails. If the ability of the British House of Lords to prevent passage of legislation has been curtailed, surely it is time to permit a simple majority of the United States Senate to close off debate.

In the great legislative reapportionment cases of the 1960s, the Supreme Court defined democratic government as majority rule based on the principle of one person, one vote. It is time to apply that standard to the Senate.

Chris Matthews took up this topic on a recent segment of Hardball. Matthews' main bone of contention: Why has everyone accepted the premise that a 60-vote supermajority is deemed the necessary means of enacting legislation? Why can't there be speechifying, and most importantly "cots." Matthews: Abolish Filibuster, Let Majority Rule "If you need sixty, you get nothing done," Matthews said. "When are we going to trust, and say, okay, now it's time to let the majority rule so we can get health care, so we can get energy, so we can get a better education system?"

Maybe it is time for the Senate to debate its rules of debate. Cloture is for wussies: make Mr. Smith filibuster (for the uninitiated, this is a reference to Mr. Smith Goes To Washington, a classic Jimmy Stewart film with a filibuster the way it was meant to be).