Where in the United States Constitution is there a requirement that a bill pass the Senate with at least 60 votes? Hint: there is no indication the Framers discussed filibusters.
In 2009, the Democratic Party held 57 seats in the United States Senate. Two independents (Bernie Sanders of Vermont and Joe Lieberman of Connecticut) regularly, but not always, voted with the Democrats. Al Franken’s victory in Minnesota was held up for several months as his and his opponent’s lawyers wrangled in court.
Legislation was held up because (1) Article I, §5 provides that both the House and the Senate “may determine the Rules of its Proceedings”; (2) In 1805, Vice President Aaron Burr suggested “previous question” motions be dropped from the Senate rules; (3) “Cloture,” or the means by which the Senate could end a filibuster, was promulgated in Senate Standing Rule XXII in 1917 and provides that 60 votes can end a filibuster; and (4) On the night of President Obama’s inauguration, Republican Congressional leaders met for dinner to plan how to block the new President’s policies—Senator Mitch McConnell (R-Ky, perhaps to be replaced by Ashley Judd in the 2014 mid-terms) most famously memorialized their sentiments in October, 2010, to the effect that the chief goal of the Republican Party was to make President Obama a one-term President.
The tactic of delay we call “filibuster” is not ne, but had been used in parliamentary (word used generically) settings since Rome. (Caesar had Cato the Younger jailed for a day. I think any Senators irked by Caesar’s actions repaid the kindness on the Ides of March in a later year.)
In the United States, the Senate filibuster came about by mistake. For those of you who competed in Student Congress in high school or college, a motion for the previous question may be familiar. That motion, still present in U.S. House Rule XIX, is the means by which debate on a bill or resolution is brought to an end. In the House, unlike student congresses, a simple majority is required on previous question.
Step with me into the WABAC Machine (or the transmogrifier, if you are a fan of Calvin & Hobbes) to the year 1805. Vice President Aaron Burr recently killed (evidence indicates murdered) Alexander Hamilton. Burr suggested the Senate Rules were too cumbersome. In 1806 the Senate followed Burr’s advice and dropped the rule on previous question. Senate Rules may be changed, by simple majority vote, on the first day of the session in January or March. Filibusters did not then spring up overnight. The first real filibuster did not occur until 1837 or 1841 Depends upon one’s view). The 1841 filibuster occurred in debate over the Second Bank of the United States.
In the lead-up to World War I, Republicans filibustered a proposal to arm merchant vessels. President Wilson became angry and demanded the Senate create a cloture rule. A bipartisan committee was formed in the Senate. A deal was cut—one side wanted 2/3 majority for cloture, the other simple majority. Between 67 and 51 lies the number 60. Voila!
Still, a Senator had to earn his pay and stand up and speak. Remember Jimmy Stewart in “Mr. Smith Goes to Washington”? H.G. Kaltenborn is depicted as covering Mr. Smith’s filibuster. He says “we are seeing Democracy’s greatest show... The least man in that chamber” can continue to speak so long as “He does not sit down” and “He does not leave the chamber.”
I have written before about Frank Capra’s classic film and how it explains the filibuster as an important part of our political system, in which one man (there were no women in the Senate although Jean Arthur’s character told Jeff Smith how to do everything) could bring Congress to a screeching halt. Filibusters were notorious, but seldom used. They required a Senator be in good physical shape. Senator Jeff Smith filibusters to a point of exhaustion and collapses on the floor of the Senate.
My earliest recollection of their use was by senators from Southern states (mainly if not entirely Democrats) who blocked civil rights legislation. I thought the practice was wrong.
The scenery has changed. Now mere threat of a filibuster is enough to impose the actual thing. In an episode of Star Trek, titled “A Taste of Armageddon,” the crew encounters two planets at war. The leadership of both planets has reduced the expense of war via computer-simulated battles. People submit to execution if they are “hit.” The blood and gore and nastiness of war had been removed although people still were killed.
At least Senators who filibustered in the 1950s and 1960s had to get up off their asses for the however-many hours they spoke. Now a senator need only press a button or send an e-mail from his/her plush leather chair.
Instead, I suggest this: make Senators earn their pay. If a Senator threatens a filibuster, make her or him actually expend the energy to block the legislation. Let us hear that person read aloud from a cookbook or the Constitution for 20 hours.
Perhaps if the Senators have to actually work—and to talk on one’s feet for 20 hours is work—maybe the quick threat of a filibuster will end. Then perhaps we can get on with the important legislation that is the target of delay.
Then again, maybe I am just a poopy-head.