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Day 17

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How the Filibuster Emasculated the Senate

A Helpless and Contemptible Body

by CHRISTOPHER BRAUCHLI

You can’t really blame the senators. It’s much easier for them this way. On the other hand, it was more amusing for the citizens the old way. The senators should go back to the old way. I refer to the filibuster. They took the fun out of it several decades ago and it’s high time they put it back. The senators would have more time in the public eye and the public eye would have something at which to gaze.

According to the Congressional Quarterly (CQ), the filibuster’s first use by the U.S. Senate took place in 1841 when Democrats and Whigs were fighting over the appointment of official Senate printers and the establishment of a national bank. Later in the 19th Century the filibuster was involved in issues pertaining to slavery, the civil war and reconstruction. In 1917 it was used to block a bill authorizing the purchase of ships and another authorizing the arming of merchant ships, both sought by President Woodrow Wilson to prepare the nation for war. Following the 1917 filibuster, the Senate adopted a cloture rule to cut off endless filibustering that was invoked 25 times through 1962, but successfully ended a filibuster only four times.

In days gone by filibusters required talking. And more talking. So long as the filibusterers had the floor, the Senate could not engage in other business and the filibusterers were free to talk as long as they had the strength and observed the rules that permitted them to hold the floor. In the 1950s and ‘60s the threat of civil rights legislation being passed was sufficient to guarantee filibusters. Strom Thurmond filibustered a civil rights bill in 1957 speaking continuously for twenty-four hours and eighteen minutes. Three years later eighteen southern senators formed groups of two and kept the senate in session for 9 days until majority leader Lyndon Johnson abandoned the legislation in favor of a weaker version later passed. June 10, 1964, Senator Robert Byrd came to the end of a speech he had given that lasted 14 hours and 13 minutes opposing the 1964 Civil Rights Act. Shortly after he concluded, cloture was approved bringing to an end a debate that had taken 57 working days including six Saturdays. Then a sad thing happened. Majority Leader Mike Mansfield imposed a rule that might be called the Virtual Filibuster. Senators call it two tracking.

Under the two track rule more than one bill can be pending on the floor of the Senate as unfinished business. Thus, if a filibuster of a given bill is threatened, the senate pretends that the filibuster is taking place but continues working on other legislation. In effect (and it may be hard to believe that senators are capable of this) the senators are multi-tasking.

In 2004, former Congressman Jack Kemp wrote that in the 19th century there were only 23 filibusters whereas between 1970 and 2004 there were 191. The increase in number was attributable to the Virtual Filibuster whose abolition Mr. Kemp favored. Today every piece of legislation and many nominations are threatened by filibuster. It seems unfair to the minority that they are not given the opportunity to put their mouths where their hearts are.

The Senate should get rid of the Virtual Filibuster. It should insist that everything come to a grinding halt while those opposing legislation are permitted to demonstrate their oratorical skills. Some senators may oppose this new-old idea on the completely believable ground that they lack enough information about the legislation they oppose to discuss it intelligently for 10 minutes, much less several hours. Those fearing that should be comforted by the knowledge that under the rules of the Senate, their orations need not be germane to the legislation being opposed. They can, as Senator Huey Long once did while filibustering, discuss recipes for a variety of Southern foods. Requiring those filibustering to stand before cameras and orate gives them the opportunity for viewers of C-Span, Twitter and the like to let the whole world see how brilliant they are. And if, as would often be the case, the orator or the cause is not brilliant, the orator and his colleagues may, after sufficient public exposure, recognize that they are an embarrassment to the country and abandon the filibuster.

When President Wilson commented on the use of the filibuster to block the arming of the merchant ships in 1917 he said: “The Senate of the United States is the only legislative body in the world which cannot act when the majority is ready for action. A little group of willful men . . . have rendered the great government of the United States helpless and contemptible.” Mitch McConnell, minority leader of the senate, might want to contemplate those words. Some would say they describe him and his Republican cohorts.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.