Filibuster Redux


The current flap over whether or not the Senate democrats can or should use the filibuster to stop any appointments or legislation approved by the president/Senate-majority from being confirmed/enacted is fodder for thought. Since the privilege of filibuster is nowhere mentioned in the Constitution, and since the Constitution affirms the right of the majority to be paramount in both the Congress and the governance of the country, the subject should be moot by any reasonable person. But, of course, the Senate is not known for its overall reasonableness, no matter which party is in the majority; consequently, hypocrisy is always the order of the day when the subject’s ugly head is reared.

The Senate of 1917 confirmed the “rule” (not law) regarding the privilege of “cloture,” the closing down of a filibuster, a word derived from the term pirate. Without such an instrument, notwithstanding the obvious violation of the Constitution (or at least its spirit) with regard to the right of anyone anywhere under normal circumstances to be free to speak, especially in an official capacity such as that of Senator, Senators opposing a bill could presumably speak until the end of time in order for the bill not to be handled (voted up or down) or the makeup of the Senate to be changed in their favor, whichever should come first, in which case the new minority party could return the favor. In 1917, the new Senate “rule 22” designed to shut down a filibuster required that a two-thirds vote (64 Senators at that time) would be necessary to engage cloture. The Senate of 1975 replaced the two-thirds requirement with a three-fifths requirement, thus making it possible for 60 Senators to stop endless rambling designed to thwart the will of the majority.

There’s little argument here with the notion of cloture, since the business of the legislative branch can’t just be closed down for indefinite periods while the Senate minority, representing a minority of the citizens, works its will upon the Senate majority and the majority of citizens as determined by the elective process. There IS an argument with the method employed to stop the mindless rambling designed not to inform or even change votes but to simply obstruct. It should be neither necessary nor desirable to invoke cloture, i.e., the official stifling of dissent, as long as each senator is given a reasonable amount of time to express his/her point. In other words, a vote should not be necessary to stop people from speaking.

The heavy lifting with respect to both appointments and legislation is done in the committees; therefore, when a committee releases a matter for consideration by the body, whether along partisan lines or not, and assuming that the lawmakers are familiar with the legislation, it is reasonable to allot each senator about an hour to either speak or share his time with a colleague. That amounts to 100 hours, or more than 12 working days for debate. Those for and against could speak alternately, thus accommodating all avenues of claim and rebuttal. Some, if not most, senators will not need an hour, and many of them will need virtually no time at all, Senate speeches being what they are. It’s doubtful that any minds are changed during any of the speeches; indeed, senators wander around during the speeches and may not even attend. At the end of that time there should be an up or down vote, and the matter, whether settled along partisan lines or not, should be enacted into law or defeated or the appointment should be confirmed or denied. To the victor belong the spoils in even a republic. The election cycle gives the appropriate tilt to governance, so that the parties share the responsibilities and help keep the government on course. Since a simple majority is all that’s needed to handle a “rule” of the Senate, Majority Leader Frist can introduce a resolution effecting just what was noted above. Rule 22 has already been changed once, by a simple majority.

This introduces the matter of hypocrisy. With respect to the hypocrisy connected to the filibuster, it must be said that both the democrats and republicans use it for advantage when in the minority and holding the three-fifths requirement hostage. The record for a single filibuster speech belongs to the late Strom Thurmond, who spoke for 24 hours and 18 minutes in opposition to the Civil Rights Act of 1957 and functioned as both a democrat and republican while in the Senate. Today, the democrats are using the filibuster, so it might be interesting to see how their flip-flops register. This is from the Congressional Record of 20 February 1975 and is a statement by Senator Robert Byrd, perhaps, along with Senator Ted Kennedy, the most adamant purveyors of the principle of filibuster at this time:

“This Congress is not obliged to be bound by the dead hand of the past. . . . . The first Senate, which met & in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.”

So much for Senator Byrd, who completed on the morning of 10 June 1964 a filibuster speech that had run on for 14 hours and 13 minutes – an all-nighter of the first water – against the Civil Rights Act of 1964. That filibuster lasted 57 working days, including six Saturdays. Disgusting! How about Senator Ted Kennedy? As also noted in the Congressional Record of 20 February 1975, the senator had this to say:

“But the Constitution enshrines no prohibition on action by the people’s representatives in Congress that may be construed as justifying the filibuster rule. Under our fundamental constitutional scheme, the rights of the minority are protected by a series of specific provisions, none of which has any relevance to the general rules by which the House and Senate perform their legislative functions.” As late as 1995, Kennedy voted in favor of a proposal to eventually allow a majority of senators to end debate. So much for Kennedy’s hypocrisy.

Majority Leader Frist should garner the intestinal fortitude to bring about the resolution of the filibuster problem, knowing full well that when the Senate is again dominated by democrats he will be unhappy. He is elected to do a job and do it well. Both parties have engaged in the hypocritical posturing of the filibuster long enough. The time has come for some actual statesmanship to be exercised by both parties, and it is to their detriment that they portray to the public an unwillingness to be both lawful and sensible.