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    The filibuster: Bring back the good ol' days

    BY John Yang
    01/23/2005

    WASHINGTON -- In the climax of Frank Capra's 1939 paean to democracy, "Mr. Smith Goes to Washington," Sen. Jefferson Smith holds the Senate floor for nearly 24 hours, reading the Senate manual and the Declaration of Independence through the night -- a lone, decent man using a filibuster to stand up for the little guy against the power of his home state's avaricious political machine and their business cronies.

    If Senate Majority Leader Bill Frist were to direct a remake today, there'd be a little rewrite. Instead of the earnest Jimmy Stewart, he might cast a sinister-looking Willem Dafoe or an unctuous Susan Sarandon as Sen. Smith -- an obstructionist liberal abusing his or her right to unlimited debate to block a good, decent, God-fearing conservative judicial nominee (Tom Hanks or Harrison Ford? Have your people call my people).

    For more than two centuries, lawmakers of all stripes have used filibusters to stop legislation or a nomination when they do not have the votes to defeat it outright. A senator, or a group of senators, holds the floor and "debates" the issue, making clear that he will not yield the floor to allow a yes-or-no vote until hell freezes over.

    While it takes 51 votes to approve legislation or confirm a nomination, Senate rules require 60 votes to break a filibuster by limiting debate. So a filibuster allows 41 senators to take the entire process hostage -- the word actually comes from a Dutch term for pirates who held ships for ransom -- in hopes of forcing the majority to drop or modify a measure or withdraw a nomination. It allows a determined minority to thwart the will of the majority.

    So far, Senate Democrats have used filibusters to block 10 of President Bush's 229 judicial nominations. And the stakes are getting higher as Supreme Court Chief Justice William Rehnquist's thyroid cancer seems to bring his retirement closer. Now, Frist wants to limit the use of the technique, saying the Democrats' filibusters against the president's judicial nominees are "a formula for tyranny by the minority." (Nevermind that such political philosophers as John Stuart Mill and Alexis de Toqueville said that a "tyranny of the majority" was one of democracy's greatest potential pitfalls.)

    Long spectacle

    Filibusters, such as the fictional one in "Mr. Smith," used to be grand spectacles. Capra and Stewart likely took inspiration from Sen. Huey P. Long's Depression-era filibusters against legislation he thought unfair to the poor. But Long's most celebrated came on June 12, 1935, when he tried to protect a bit of political patronage he controlled. He recited Shakespeare and recipes for potlikkers and fried oysters. Running low on material, the populist Louisiana Democrat even asked for requests: "I will accommodate any senator on any point on which he needs advice." "Ask Huey" did not prove popular.

    At one point, Long, noticing that some of his colleagues were dozing at their desks, asked Vice President John Nance Garner, who was presiding, to instruct them to pay attention. "That would be unusual cruelty under the Constitution," Garner replied.

    At 4 a.m., after 15 hours and 30 minutes, Long yielded the floor -- forced to answer nature's irresistible call.

    That performance is not the record, not by a long shot. That distinction goes to the late Sen. Strom Thurmond of South Carolina, who logged 24 hours and 18 minutes on the Senate floor in 1957 to oppose a civil rights bill. According to Nadine Cohodas' excellent biography, "Strom Thurmond and the Politics of Southern Change," Thurmond prepared in the Senate steam room, dehydrating himself in hopes of avoiding Long's fate.

    Armed with reading material, malted milk tablets and throat lozenges, Thurmond was recognized at 8:54 p.m. on Aug. 28. "Mr. President," he said, "I rise to speak against the so-called voting rights bill, H.R. 6127." In the following hours, he read aloud the voting statutes of every state, as well as the Declaration of Independence, the Bill of Rights and Washington's Farewell Address.

    After 12 hours, Sen. Paul Douglas of Illinois, hoping to speed things along, put a pitcher of orange juice on Thurmond's desk. Strom drank a glass before an aide snatched it out of reach.

    Several hours later, the Senate physician urged Thurmond to stop -- a medical directive sought by the senator's concerned aides -- and he finally yielded the floor at 9:12 p.m. on Aug. 29 with the superfluous closing statement: "I expect to vote against the bill." He had beaten the previous record, set by Sen. Wayne Morse of Oregon in 1953 against legislation dealing with offshore oil rights, by two hours.

    Since then, some senators' speeches have only seemed that long to reporters sitting in the press gallery.

    Consensus-building

    In giving the minority a weapon to defend its rights, filibusters (which are allowed only in the Senate) have a practical effect on legislation in Congress. Because it takes 60 votes to break a filibuster, there's a premium on consensus-building. Senators need to write bills that will win broad support. And a president tends to pick judicial nominees moderate enough to advance his policy goals without polarizing lawmakers. Neither party has had a filibuster-proof majority in the Senate since 1980, one reason why there tends to be more bipartisanship there than in the House, where only a simple majority is needed to conduct business.

    Given the congressional workload, there are almost always more bills ready for Senate floor action than there is time to consider them. Especially during the end-of-session crunch, this means that leaders are much less likely to call up contentious bills that face a filibuster threat. Unless those measures absolutely need to be passed, they usually have to wait for another year.

    It's often said that the tradition of unlimited debate in the Senate -- "the world's greatest deliberative body" as its members modestly call it -- has its roots in the Founding Fathers' design for the House of Representatives to be the forge of democracy and the Senate, to use Benjamin Franklin's oft-quoted aphorism, to be the saucer that cools the hot coffee.

    But in the early days of Congress, House members also had the filibuster in their bag of legislative tricks. As the body grew in size to match the growing nation, though, House rules were changed to limit debate.

    Cloture is born

    The absolute right to talk (and talk and talk ... and talk) continued in the Senate until 1917. President Woodrow Wilson, frustrated, by filibusters that blocked key initiatives, used World War I, and the urgent question of whether the United States should become directly involved, to persuade the Senate to adopt Rule 22. It allowed a two-thirds majority to cut off debate -- a parliamentary maneuver known as "invoking cloture." (In 1975, the Senate reduced the votes needed to a three-fifths majority.) It was used for the first time in 1919 to end a filibuster against the Treaty of Versailles.

    Until 1949, though, Rule 22 applied only to legislation -- filibusters against nominations could not be cut off. Between that year and 2003, according to Senate records, a filibuster successfully blocked a judicial nomination only once: In 1968, with the presidential election drawing near, conservative senators filibustered President Lyndon B. Johnson's nomination of Supreme Court Associate Justice Abe Fortas to be chief justice. After an attempt to invoke cloture was defeated, Johnson withdrew the nomination.

    For decades, filibusters were rare and rarely failed, reserved for the biggest national issues, notably Southerners bent on defeating civil rights legislation in the 1950s and early 1960s. That began to change in the 1970s, when then-Majority Leader Mike Mansfield, a Montana Democrat, and Majority Whip Robert Byrd, the West Virginia Democrat, started the practice of having more than one bill pending on the floor at once, which is still the way the Senate operates today.

    Before, with only one bill under consideration at a time, a filibuster would stop all business dead in its tracks. Now, with two measures moving at once, the leadership can simply set aside the controversial bill and continue to work on the other. That sidetracked bill may languish in legislative limbo, but it does not tie the Senate up in knots and other business goes forward.

    Because the consequences are much less severe now, filibusters are used much more frequently -- and against routine bills. Former Republican senator Alfonse D'Amato of New York once filibustered a Pentagon spending bill because it cut funding for a bomber being built on Long Island. On another occasion, he held up a tax bill he said would hurt a typewriter manufacturer in Upstate New York. In all of the 19th century, there were only 23 filibusters. Between 1970 and 1994, there were 191.

    But they aren't your father's -- or grandfather's -- filibusters. No more senators on their feet, holding the floor, refusing to yield while hoarsely reading recipes into the record around the clock. No more cots in the cloakrooms and bleary-eyed senators in bathrobes on the Senate floor. Now, it can just be an avalanche of amendments offered -- or even just the threat of a filibuster -- that can hold up a final vote on a bill and, eventually, kill it.

    Byrd, who knows a thing or two about filibusters, having participated in them to block civil rights legislation in the 1960s, has called this new version a "casual, gentlemanly, good-guy filibuster. ... Everybody goes home and gets a good night's sleep and everybody protects everybody else." It was just such a filibuster that Senate Republicans used to scuttle elements of President Bill Clinton's economic stimulus package in 1993.

    The 'nuclear option'

    Majority Leader Frist is threatening to use an obscure parliamentary maneuver -- dubbed by some "the nuclear option" -- to change Senate rules and forbid filibusters against judicial nominees.

    Former Republican Rep. Jack Kemp of New York has another idea:

    Instead of doing away with the filibuster, bring back the old-fashioned kind. Force Senate Democrats opposed to the president's nominees to, well, put their mouths where their mouths are: Make them hold the floor and talk for hours -- even days -- if they really want to block a yes-or-no vote.

    "Following a few days of a real forced filibuster, most Democrats would peel away from their irresponsible obstructionism one by one," Kemp predicted.

    Break out the cots.

    And hold the orange juice.

    John Yang is an ABC News correspondent.

    by John Yang on 1/23/05.