Filibustering in Historical Context
It is unlikely that the 109th Senate will make a more important decision: if Frist gets his way, the President will have a virtually free hand on judicial appointments until 2008.
Though the concept of a filibuster dates back to the 19th century, in the Senate since the Progressive Era, the filibuster passed through four distinct phases. The filibuster was rarely employed during the Roosevelt, Taft, and first Wilson administrations. Indeed, the first Wilson administration featured the opposite extreme, a structure similar to that of the current Congress: the use of the party caucus in a closely divided legislature, with the President passing two reform packages on almost straight party-line votes.
Wilson’s political mishandling of the U.S. entrance into World War I set the stage for ending the tradition of unlimited debate. Although an anti-war coalition had reelected the President in 1916, Germany’s resuming unrestricted submarine warfare in January 1917 placed Wilson in an impossible position. Reluctant to recommend outright war, he instead introduced a measure to arm U.S. merchant ships for self-defense. When the Senate’s left-wing contingent, the peace progressives (about which I’ve written elsewhere), filibustered to prevent the measure from coming to a vote, the President fumed, “A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.” In the resulting nationalist fervor, the Senate adopted Rule 22 that allowed debate to end with a two-thirds majority vote. The upper chamber then imposed cloture against the armed ship bill foes.
Adoption of Rule 22 ushered in the second, and most famous, phase of the history of filibustering. Southern foes of civil rights legislation consolidated their power by successfully arguing that the Senate, because only one-third of its membership changed with each election, was a continuing body, and therefore rules—including Rule 22—could only be changed by a 2/3 vote. Robert Caro analyzes the Senate of this era, which produced the longest filibuster in American history (Strom Thurmond’s 24-hour-plus rant) but ultimately the crushing of the Southerners’ power with the imposition of cloture for the Civil Rights Act of 1964.
By this point, the third era of 20th century filibustering already had begun, with ideological dissenters (of either the right or left) targeting legislation that they deemed unacceptable with filibusters. Few now recall that the Senate’s second imposition of cloture occurred not with the 1964 Civil Rights Act but against the so-called “liberal filibuster” of 1962, when a small band of Senate dissenters, led by Albert Gore, Sr. (D-Tennessee), Paul Douglas (D-Illinois), and Ernest Gruening (D-Alaska), fought a Kennedy administration measure to establish the Commercial Satellite Corporation, a partnership between the government and AT&T to fund the first commercial satellite structured on terms very favorable to AT&T.
Despite his key role in weakening the filibuster with the Civil Rights Act’s passage, Lyndon Johnson had an agnostic attitude toward the tactic: if doing so advanced his agenda, he had no problem recommending a filibuster. On August 19, 1964, just five days before the start of the year’s Democratic national convention, the House passed a bill sponsored by Virginia’s William Tuck to deny to the Supreme Court the right to review court decisions concerning reapportionment and to block district court jurisdiction over any apportionment question. After Majority Leader Mike Mansfield announced that the Tuck bill would be pending business when the Senate returned after the convention, Paul Douglas (an economics professor before he entered the Senate) and Pennsylvania liberal Joe Clark urged the President to support a plank in the Democratic platform upholding the Supreme Court’s authority on reapportionment issues. Johnson, correctly recognizing that doing so would needlessly alienate Southern delegates, refused to do so. Then, when Bill Moyers reported that Anthony Lewis, the New York Times reporter known for his close ties to Attorney General Robert Kennedy, planned to file a story on the reapportionment issue, the President had heard enough. In colorful terms, he gave Moyers a message to relay to Lewis: liberals could accomplish their goal by filibustering for two weeks, after which Mansfield would have to set the amendment aside. (The audio clip is just over one minute, and starts with LBJ hilariously giving his opinion of college professors.)
Conservatives more often than liberals used the filibuster after the Democratic landslide in 1964. In the wave of procedural reforms following Watergate, the Senate in 1975 reduced the required vote for cloture to 60 senators, and, citing efficiency, allowed senators to block action on legislation merely by invoking the right to filibuster, without actually having to engage in one. As with many Watergate-era reforms, this one produced unintended consequences: Julian Zelizer, author of a sensational new book on the postwar Congress, recently noted that with the procedural change, “the filibuster exploded, and became a normal tool of political combat.”
So, how does Frist’s effort to restrict the filibuster hold up in light of this historic record?
1.) Frist’s argument that allowing filibusters on court nominees violates the constitutional requirement that the Senate advise and consent to such nominations is absurd.
2.) On the other hand, his contention that the filibuster is anti-majoritarian and that the Senate should not be considered a continuing body is identical to the argument that liberals offered in the 1950s.
3.) Also valid is his claim that the filibuster has been used in recent years far differently than in the past, and in a way few could have anticipated in 1975, when the current filibustering rules were established.
4.) But, as congressional scholar Norman Ornstein notes,"Having a system where an intense minority has a say is a good thing.” In this highly partisan Senate, where there is no reason to believe that without the threat of filibuster any Bush judicial nominee will even get closely examined, much less rejected, maintaining the current filibuster rule probably represents the only way for the Senate to play a meaningful role in the confirmation process.