Why Did the Senate Adopt the Rule Allowing Filibusters?

Scott Shane, in the NYT (Nov. 21, 2004):

"Half of official Washington is here to see democracy's finest show, the filibuster. The right to talk your head off! The American privilege of free speech in its most dramatic form!" - A reporter in the climactic scene of "Mr. Smith Goes to Washington," 1939.

In the long, colorful history of the filibuster, an extra-constitutional accident of Senate history that has become an institution, perhaps no performance exceeded that of the populist Democratic senator, Huey P. Long, of Louisiana.

Hoping to stave off a bill that would have given his political enemies at home lucrative New Deal jobs, Mr. Long took the floor on June 12, 1935. He read the Constitution and the plays of Shakespeare. He offered up a recipe for fried oysters and a formula for Roquefort dressing. He asked his exhausted colleagues to suggest topics for his monologue. When they wouldn't oblige, he invited reporters in the press gallery to pass down suggestions.

Only at 4 a.m. did the urgent call of nature put an end to Mr. Long's 15-hour soliloquy. Yet this is not the Senate record. That dubious honor belongs to Senator Strom Thurmond of South Carolina, who held up the 1957 civil rights bill for a brain-numbing 24 hours and 18 minutes.

What is the good of a tradition whose essence is wasting time?

Many historians and congressional scholars respond that the filibuster is a valuable check against the passage of ill-considered legislation. Today, its champions are being heard once more as the filibuster faces its most serious challenge in years.

In a Nov. 12 speech to the Federalist Society, the association of conservative jurists and lawyers, Senator Bill Frist, the majority leader, vowed to end the Democrats' use of the filibuster to prevent floor votes on President Bush's judicial nominees.

"This filibuster is nothing less than a formula for tyranny by the minority," Dr. Frist said. "The Senate cannot allow the filibuster of circuit court nominees to continue. Nor can we allow the filibuster to extend to potential Supreme Court nominees."...

The word filibuster is derived from the Dutch vrijbuiter, or pirate. Passed down through French and Spanish, "filibuster" landed in Congress in the mid-19th century as a tongue-in-cheek label for a senator whose interminable speech held a bill, not to mention his colleagues, hostage.

Sarah A. Binder, a political scientist at George Washington University and co-author of a book on the filibuster, said that both the House and Senate began work in 1789 with a measure called a "previous question motion" that required only a simple majority to cut off debate. The House has kept such a rule to the present day.

But the Senate dropped it in an 1806 housecleaning without fully understanding the implications, she said.

As early as 1841, a frustrated Senator Henry Clay of Kentucky threatened to try to change the debate rules when opponents tied up his banking bill with interminable talk. But the Senate finally adopted a formal means of ending a filibuster only in 1917, at the urging of President Woodrow Wilson.

Infuriated by the failure of Congress to act on war measures, Mr. Wilson fumed. "A little group of willful men," he declared, "representing no opinion but their own, have rendered the great government of the United States helpless and contemptible."

With that push, the Senate decided that a two-thirds vote could cut off a filibuster, borrowing the French parliamentary term "clôture" for such a motion. In 1975, the Senate cut the required vote for cloture to three-fifths, or 60 senators, instead of 67.

At about the same time, the Senate created a two-track process that allows senators to block action on a piece of legislation merely by invoking the right to filibuster, without actually having to stand before the chamber and drone endlessly on. Meanwhile, the Senate can take up other business.

The measure, intended to promote efficiency, inadvertently encouraged filibusters by making them painless, said Julian Zelizer, a historian of Congress at Boston University. "The filibuster exploded, and became a normal tool of political combat," he said. In 1995, he noted, almost 44 percent of all major legislation considered by the Senate was delayed by a filibuster or the threat of one.

Professor Zelizer calls the filibuster a relic, stained by its use to block civil-rights legislation. But in the polarized Congress of today, he said, "this is one way to check the partisan domination we have." Because it forces the majority to negotiate with the other party, the filibuster "is one of the few forces pushing toward the center," Professor Zelizer said.

Besides, the filibuster has at times symbolized, justifiably or not, the courageous stand of principled individuals against a corrupt or compromised majority. That symbolism was captured in "Mr. Smith Goes to Washington," the classic Frank Capra film in which James Stewart plays a naïve newcomer who holds the Senate hostage for longer even than Strom Thurmond did, before collapsing in fatigue and triumph.

Such iconography is so powerful that, even as he attacked the Democrats' filibustering in his Federalist Society speech, Senator Frist praised the movie and what it represented....