Once the tool of Southern segregationists, unending debate has become as acceptable as it is undemocratic.
Historically, the filibuster was a last-ditch tactic used by an obstructionist minority to prevent passage of a bill by taking advantage of Senate rules that permitted unlimited debate. A measure would simply be “talked to death.” It was widely regarded as misuse of the rules, and was used sparingly. The origin of the word “filibuster” reflected its outlaw status. It was first applied to buccaneers in the West Indies who preyed on Spanish commerce to South America. According to Webster’s, a filibusterer was “a freebooter or soldier of fortune against a foreign country with which his own country is at peace.”
In the entire 19th century, including the struggle against slavery, fewer than two dozen filibusters were mounted. In F.D.R.’s time, the device was employed exclusively by Southerners to block passage of federal anti-lynching legislation. Between 1933 and the coming of the war, it was attempted only twice. Under Eisenhower and J.F.K., the pattern continued. In the eight years of the Eisenhower administration, only two filibusters were mounted. Under Kennedy there were four. The number more than doubled under Lyndon Johnson, but the primary issue continued to be civil rights. Except for exhibitionists, buffoons and white southerners determined to salvage racial segregation, the filibuster was considered off limits.
But with the enactment of major civil rights legislation in the 1960s and ’70s, the issue of equality for African-Americans faded from the Senate’s agenda, and the filibuster shed its racist image. Increasingly senators of all ideological persuasions began to consider the filibuster an acceptable weapon. By the time of the Carter and Reagan administrations, the frequency of filibusters had increased to 20 per year. “Filibusters are a necessary evil,” said Senator Robert Byrd of West Virginia said in 1988. “They must be tolerated lest the Senate lose its special strength and become a mere appendage to the House of Representatives.”
It was during the Clinton years that the dam broke. In the 103rd Congress (1993-1994), 32 filibusters were employed to kill a variety of presidential initiatives ranging from campaign finance reform to grazing fees on federal land. Between 1999 and 2007, the number of Senate filibusters varied between 20 and 37 per session, a bipartisan effort.
So ingrained has the filibuster become, that in 2005 when Senate Majority Leader William Frist talked about amending the Senate’s rules to ban filibusters on judicial nominations, the move was universally dubbed the “nuclear option,” evoking images of Armageddon and total destruction.
The routine use of the filibuster as a matter of everyday politics has transformed the Senate’s legislative process from majority rule into minority tyranny. Leaving party affiliation aside, it is now possible for the senators representing the 34 million people who live in the 21 least populous states — a little more than 11 percent of the nation’s population — to nullify the wishes of the representatives of the remaining 88 percent of Americans.
It will be argued that the Senate, with two senators per state, has never been based on majoritarian principles. But look at the record. Congress, like the British Houses of Parliament, was designed to reflect two distinct bases of representation. In Britain, with rigid social and economic stratification, representation hewed to class lines. The House of Commons reflected the interests of the population generally; the House of Lords that of the aristocracy. In the United States the House represented the interests of the people, and the Senate reflected the will of the states. Until the adoption of the Constitution’s 17th Amendment in 1913, United States senators were elected by state legislatures. Indeed, senators were considered representatives of state governments, not the people. Equality among the states had been the basis of union in 1787, and for that reason it may have been justifiable to afford a significant number of states a veto over national policy.
But with the direct popular election of senators, all of that changed. Senators no longer represented state governments, they represented the people. The rationale for providing states a veto through the use of the filibuster no longer obtained.
In 1917, with two-thirds of the Senate having been elected by popular vote, the first dilution of the absolute authority of the filibuster was achieved. The Senate adopted Rule 22 to permit cloture to be imposed (limiting debate) if two-thirds of the Senate agreed. The Times wrote, “It is difficult to overestimate the importance of the new rule, both in measures of immediate interest and on the general course of legislation.”
But invoking cloture proved difficult. Between 1919 and 1960, 23 attempts to close off debate were mounted, and only four were successful. In 1975, Rule 22 was amended to allow 60 senators, three-fifths of the Senate, to close off debate. The results have been better, but not markedly so. In the 108th Congress (2003-2004), cloture was attempted 49 times and was successful only12. What is more disheartening is the growing frequency with which the filibuster has been resorted to. In the most recent Congress, 112 filibusters were mounted, and 51 were successful.
Thus far the Obama administration has had better luck. But it has been touch and go. With 57 Democrats, and two Independents and a few Republicans willing to side with the majority, the Senate has invoked cloture four out of the four times it has been required.
Nevertheless, the use of the filibuster as an everyday tool of legislation stands the idea of democratic government on its head. Instead of majority rule in the Senate, the tyranny of the minority prevails. If the ability of the British House of Lords to prevent passage of legislation has been curtailed, surely it is time to permit a simple majority of the United States Senate to close off debate.
In the great legislative reapportionment cases of the 1960s, the Supreme Court defined democratic government as majority rule based on the principle of one person, one vote. It is time to apply that standard to the Senate.