Them’s The Rules . . .

U.S. Senate rules are established for each session in an Organizing Resolution. A 50/50 division of seats between Republicans and Democrats, with the Vice-President casting tie-breaking votes, requires negotiation of the rules between the Majority and Minority leaders. The last time the Senate had a 50/50 division was in 2001 under the newly elected Bush Administration; at that time, Republican Majority Leader Trent Lott and Democratic Minority Leader Tom Daschle negotiated and adopted the Senate’s Organizing Resolution.

The 2020 election created a mirror image political circumstance with the newly elected Biden administration, and a 50/50 division in the Senate. New Democratic Majority Leader Chuck Schumer proposed adopting the precedent Organizing Resolution from 2001. But Republican Minority Leader Mitch McConnell demanded the Democrats guarantee they will maintain the filibuster through 2022, when he hopes Republicans will regain control of the Senate.

The filibuster is a procedural rule that allows a Senator to take the floor and speak, continuing debate indefinitely, prior to bringing a proposed bill to a full Senate vote. A vote of cloture (“closure”) requires 60 votes to end debate and bring a proposed bill to the floor for a vote. Continuing debate requires a quorum of at least 60 Senators to be present. These rules allow a minority of 41 Senators to use the filibuster to continue debate and block any proposed legislation from a Senate vote.

Frank Capra’s “Mr. Smith Goes to Washington” is an iconic film about America’s political system that dramatizes the quirky filibuster rule. The movie is based on screenwriter Lewis Foster’s unpublished story “The Gentleman From Montana”, an allegorical account of U.S. Senator Burton Wheeler of Montana, who exposed the famous “Teapot Dome” oil lease scandal during the Warren Harding administration.

Senator Jefferson Smith (James Stewart) is leader of the Boy Rangers, and is appointed by Governor Hubert Hopper to replace deceased Senator Sam Foley. Hopper’s political boss, Jim Taylor, pressured Hopper to choose his political stooge, but Hopper chose Smith instead, believing his wholesome image would please the public, while his naïveté would make him easy to manipulate. Smith is mentored by secretly corrupt Senator Joseph Paine (Claude Rains), lifelong friend of Smith’s late father. Smith proposes a bill for a government loan to buy land for a boys camp, but the site is part of a graft-backed dam construction scheme included in a massive public works bill supported by Taylor and Senator Paine.

Taylor produces fraudulent evidence that Smith owns the land for the camp, profiting from his proposed bill, and influences newspapers and radio stations in Smith’s home state to ignore actual corruption in the public works bill, while widely reporting the false allegations against Smith. Taylor’s efforts are countered by the Boy Rangers, who use their own popular newspaper to defend Smith, and they are attacked by Taylor’s political thugs. Smith filibusters the corrupted public works bill, hoping to prove his innocence to the Senate before their vote to expel him. As Smith filibusters, Paine brings in bins of letters from Smith’s home state demanding his expulsion from the Senate. Smith collapses from exhaustion, and, verwhelmed by guilt, Paine attempts to shoot himself, then publicly confesses his corruption, and affirms Smith’s innocence.

It is difficult to imagine a U.S. Senator overwhelmed by guilt, so it took Jimmy Stewart’s irresistible boyish exuberance to move audiences with his dramatization of an arcane Senate procedural rule, and while the movie was poorly received by critics, it proved popular at the box office. The film was nominated for eleven Academy Awards, winning Best Original Story, and is now considered one of the greatest films of all time. The film was selected by the Library of Congress in 1989 as one of the first 25 films for preservation in the United States National Film Registry for being “culturally, historically, or aesthetically significant”. It has been restored by the American and British Film Institutes, and is a joy to watch.

Filibusters have not always been initiated by idealists like Jefferson Smith. The longest was Senator Strom Thurmond’s, who spoke for 24 hours filibustering the 1957 Civil Rights Act.  Thurmond took a steam bath in advance to dehydrate to avoid potential “accidents” and kept an aide with a pail in the cloakroom in case of an emergency “evacuation”. He went to the floor armed with cough drops and malted milk tablets, and accepted comments and questions, allowing him sandwich or restroom breaks. Thurmond spoke throughout about jury trials, interspersed with recitation of voting laws of 48 states, the U.S. Criminal Code, a Supreme Court decision, the Declaration of Independence, and a letter from President Eisenhower. He allowed Majority Leader Lyndon Johnson to swear in a new Senator from Wisconsin, and welcomed Italian dignitaries to the chamber. Thurmond’s oratorical marathon notwithstanding, the Senate quickly voted and passed the bill. 

But the filibuster has evolved to a point that is a long way from the experiences of Senators Smith and Thurmond, which reflected use of the filibuster as a delaying tactic to draw public attention and opposition to a proposed a bill. The filibuster required great physical stamina, not just on the part of the Senator undertaking it, but, due to the quorum requirement, on at least three-fifths of the full Senate. The quorum requirement means that more Senators supporting a bill are likely to be required to be present through the entire filibuster than Senators opposing the bill, thus imposing greater difficulty on a bill’s supporters than on its opponents. Today, the filibuster has evolved so that merely registering the intent to filibuster is sufficient to block proposed legislation by a minority, while a super-majority of 60 Senators is required for cloture. Again, this effectively provides for minority rule by 41 Senators, who can block any proposed legislation. The filibuster’s evolution to relatively effortless implementation has resulted in a dramatic increase in its use, as shown by the chart above. It seems to me that its escalated use by Republicans has led to a similar response by Democrats, then further escalation by Republicans, a vicious cycle, one round after another, growing much worse under the party leadership of Mitch McConnell since 2006.

The filibuster was not designed by the Framers of the Constitution, as is widely believed. Original rules in 1789 for both houses of Congress required a simple majority to end debate and bring bills to the floor for vote. The filibuster was allowed indirectly by a seemingly innocuous change in Senate rules in 1806, when the simple majority required to end debate was eliminated and not replaced; it was considered superfluous as it was assumed that all proposed bills would be brought to a vote. The filibuster was never even used until 1837, a half century after adoption of the Senate’s original rules. As the country grew, the Senate grew larger, the government’s business grew more complex, and established political parties reflected more binary political divisions. By the 1880s, almost every Senate session experienced bouts of obstruction by filibuster, usually over internal matters or nominations, not over major policy issues. Senate leaders failed repeatedly through the late 19th and early 20th centuries to reinstate simple majority rule for closing debate, but were filibustered by the minority each time.

So the filibuster remained a temporary, and very arduous measure used to delay, and draw public attention and opposition to proposed legislation. Then in 1917, debate over America’s entry into World War One brought the issue to a head. Woodrow Wilson faced increasing public outrage over the deaths of innocent Americans, passengers on flagged civilian liners sunk by German submarines. While resisting calls for war, Wilson demanded the arming of merchant ships, and the Republicans filibustered. Wilson demanded the Senate create a cloture rule as a “war measure,” and inspired strong public support. With the minority still holding the threat of a filibuster, the cloture rule, proposed to return to a simple majority, was compromised to require a two-thirds super-majority, and was adopted.

The cloture rule was adjusted again in 1975 as part of a systemic budget reform law, which lowered the cloture requirement from two-thirds to a three-fifths majority, with an exception for Budget Reconciliation bills, which would require a simple majority.

More recently, in 2013, the Senate was narrowly controlled by Democrats, and President Obama’s judicial appointments were being obstructed by Senate Minority Leader Mitch McConnell. After the Republicans refused any compromise to advance Obama’s nominations, the Democratic majority changed the rules to prevent filibustering of judicial nominees, excepting Supreme Court nominees, which would still require 60 votes. In 2015, after the death of Justice Scalia, Majority Leader McConnell struck again, outright refusing to schedule a hearing, let alone a vote, on President Obama’s appointment of Merrick Garland to the Supreme Court; this maneuver represented use of Senate procedural rules to usurp a President’s clear Constitutional authority. Then in 2017, Majority Leader McConnell changed Senate rules, eliminating the filibuster for Supreme Court nominees, lowering the threshold to 51 votes, so that Republicans with a bare majority could appoint nominees to the nation’s highest court, the appeal of last resort, over Democratic opposition. As a consequence of McConnell’s manipulation of Senate procedural rules, Donald Trump appointed three successive Supreme Court justices, strong conservatives all, in just four years, a record in American history.

Looking at this recent history, it seems that Mitch McConnell’s devotion to the sanctity of ancient Senate rules holds as long as necessary to maintain control when he is in the minority, as he so methodically demonstrated in his obstruction of the Obama administration’s agenda. Then these same rules became anathema, and were dropped like hot coals, the minute he was in the majority with a Republican President seeking to advance far right conservative justices to the Supreme Court over minority Democratic opposition; as well as to pass massive tax cuts for the wealthy and corporations as part of Budget Reconciliation bills. Now, back in the minority, McConnell has again demanded adherence to the ancient regime of the filibuster to protect minority party rights.

So, the filibuster rule was never the intent of the Founding Fathers and has never been in the Constitution. Rather, it was an early change in Senate rules that had unforeseen consequences, providing minority control of its legislative product. The electoral college already heavily favors rural states, which are generally Republican. The filibuster weights things even more favorably toward those states. Filibuster defenders argue that it requires compromise, and so brings the parties together to the ideological center, but with one party, advantaged by the electoral college, refusing to compromise, it has instead led to the opposite result – gridlock. The Republicans can advance their legislation when they are in the majority, and block Democratic legislation from either the majority or minority, a kind of veto power, and consistent with their ideological inclination to obstruct government action generally, except to advance conservative Supreme Court nominees and to pass tax cuts for the wealthy and corporations. Add the administrative ease of the filibuster’s use; and we have a formula for obstructionism. So if anyone is looking for the reason for the seeming increasing dysfunction of our government, frustrating efforts to address the country’s problems, allowing a minority of U.S. Senators to obstruct the proper function of the legislative branch of our government through use of the filibuster is a good place to look.

The initial imbalance of the electoral college was written into the Constitution, but the filibuster was not, and it can and has been changed, if circumstances, and public support, demand it. Wilson and the Democrats framed the rule as a matter of national security.; they fused procedure with policy, and used the bully pulpit and public pressure to force reform. The current urgent circumstances of the pandemic seem likely to lead to similar dynamics in the weeks and months ahead of the Biden administration. It seems clear Biden is determined not to be led down an interminable path of bipartisanship, negotiating against himself as the Republicans keep moving the goalpost, only to be submarined at the end after burning up his most precious resource – time on the calendar. This was the great error of the Obama administration in dealing with the Republicans, led by Mitch McConnell, who manipulated Senate rules to accomplish his agenda from both minority and majority positions. The Budget Reconciliation Act, with its simple majority rule, can help Biden with budget related issues. For the remainder of Biden’s ambitious agenda, my suggestion is a return to the filibuster of yesteryear, requiring its sponsor to speak continually to a highly uncomfortable quorum of 60 Senators; I believe this would go a long way to returning the practice to the graveyard of arcane Senate rules, where it clearly belongs.