On Capitol Hill, an arcane Senate tool known as the filibuster is stirring talk of a political nuclear war. Comic potential aside — lawmakers fighting to stop talking so much — the dispute raises a question nearly as old as the Republic. Does the filibuster contribute to government by acting as a check on majority power or, as many in the Republican majority now argue, is it merely an instrument of minority obstruction?
What's wrong? Democrats are threatening filibusters to thwart some of President Bush's appointments to the federal bench. As the minority party, they say the only way to block confirmation of nominees they oppose is to filibuster — to take the floor and hold it by endless soliloquy until the Republicans surrender. Republicans have responded with threats to change Senate rules in a way that would effectively abolish the filibuster on presidential nominations. If that happens, Democrats counter, they will refuse to cooperate on the entire Republican agenda for this Congress. The rumble you hear is missile silos opening.
Where did this thing come from? As a technique, the filibuster is clever manipulation of what may be imperfect Senate rules. Those rules say members can speak on the floor as long as they want, about any topic they want. The intent was to allow thorough debate. But in 1841, a group of senators twisted the rule into a bludgeon. Rather than lose their battle to scuttle the appointment of official Senate printers, the lawmakers took to the floor with plans to keep speaking until the majority cried uncle, or fell comatose. For 10 days, those boys heaved on. They ultimately failed, but the filibuster was born.
Over the decades, the filibuster became a fickle ally. The minority would speak of it reverentially, as if the Constitution's framers intended it as a check on majority power when, in truth, it derives from rules made by the Senate itself and is not mentioned in the Constitution. The majority often derided it as a perversion of the democratic process — until, of course, an election demoted them to minority status.
How has it changed? The Senate adopted the first-ever limits on the filibuster in 1917 at the urging of President Wilson. He was angry at "a little group of willful men" who opposed the arming of merchant ships against German submarine attacks during World War I, says Don Ritchie, associate historian of the Senate. Under the new rule, known as cloture, if two-thirds of the senators voted to end the droning, it ended. The Senate reduced the threshold to a 60-vote supermajority in 1975, and that is where it stands — leaving today's 55 Republican senators five votes short on the Bush judicial nominations.
What's next? Aside from a roll of duct tape, the Republicans' best chance to silence the Democrats is to lower the threshold to a simple majority of 51 votes. They say they would do so only on filibusters stalling presidential appointments. Their argument is rooted in the Federalist Papers, says Douglas Kmiec, a professor of constitutional law at Pepperdine University School of Law. The founders clearly wanted presidential nominations to be considered by the entire Senate, Kmiec says, and not held hostage to the wishes of a "cabal."
Beneath all the huffing in Washington, many see a healthy dose of hypocrisy, or at least glaring memory lapses. Republicans have happily used the filibuster to block initiatives, including President Johnson's nomination of Supreme Court Justice Abe Fortas to become chief justice in 1968.
Democrats, today's defenders of the filibusters, themselves invented cloture and established the 1975 threshold. As for the 10 Bush appointments held up by Democrats that have raised Republican ire? The Republicans held up about 60 of President Clinton's, mostly after they became the majority party in 1994.
Says who? "It's in the eye of the beholder," Norman J. Ornstein, political analyst at the American Enterprise Institute, says when asked if the filibuster has proved worthwhile over the decades. Filibusters slowed civil rights legislation in the 1950s and 1960s, allowing injustices to continue against African Americans. Yet the delays, engineered by an intense minority of Southern Democrats, also gave the nation time to adjust to the idea of civil rights and defused a measure of ill will in the South, Ornstein says.
"It really is a question of how active a government you want," says political science professor James A. Morone of Brown University. When the Democrats controlled the Senate, "a lot of people used to think, 'Let's have more active government.' With Republicans in office, many of the people who had been saying that, myself included, are having second thoughts."
Second thoughts about filibusters? Is it time to remove this imperfection? Perhaps former Senate Parliamentarian Floyd M. Riddick has the answer. "The rules of the Senate are perfect," he once said. "And if they change every one of them, they will be perfect."
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Filibuster: 1) an adventurer who engages in unauthorized warfare against a country with which his own country is at peace; 2) the making of long speeches, introduction of irrelevant issues, etc., to obstruct the passage of a bill in the Senate.
Cloture: Motion calling for a vote to end a filibuster.
Supermajority: Term for 60-vote majority needed to approve cloture motion.
Pot Likkers: Traditional Southern dish of boiled greens.