Filibuster

The Filibuster has been in the news a lot lately (Spring 2005), with lots of partisan bickering. One side says the filibuster has been in the rules since America was born, and that removing it would put us on the fast track toward fascism. The other side says it's only been in the rules a few decades, should never have been put there then, isn't in the Constitution, and must be removed quickly before it causes America to become a Communist tyranny. Who's right?

I'm no expert on politics, but it doesn't take a politics wonk to do a little lightweight reading on the history of the filibuster. I did, and found that as usual, both sides are partly right, both sides are partly wrong, and on both sides the truth is thoroughly vanquished by partisan spin.

So what's the truth about the filibuster? Was it there from the beginning? Is it in the Constitution? Is it turning us into Commies? Will removing it make us fascist?

Let's start with a brief history:

From the very beginning, both the Senate and the House had rules allowing unlimited debate. Any single senator or representative could effectively veto any legislation by debating it until the majority gave up. However, the rules were not called "filibuster", or any other label. They were just rules like any other rule. And like most Senate and House rules, they weren't itemized in the Constitution.

As the House became large, it changed the rules to limit debate. The Senate kept the rule, and being smaller it was better able to find compromises to end debate.

By the early 1800's, the rule was being used with long, irrelevant speeches intended not to continue debate but to prevent a vote. By the late 1800's, that practice was common and had come to be referred to as filibustering, a word which is traced back to a type of piracy.

In 1917, with America unable to enter World War 1 -- or even arm its merchant ships against unremitting, brazen German submarine attacks -- due to filibustering by Republican Senator Robert LaFollette of Wisconsin, who was unwilling to compromise, the Senate added a rule that enabled a 2/3 majority vote to end debate. Ending a debate in this way was called "cloture". The word "cloture" comes from the French word "clôture", which means closing or closure. Why didn't they simply call it "closure" instead? I dunno.

Senator Robert LaFollette of Wisconsin

But as the decades passed, filibustering became more common and effective, and it became more and more difficult to get a 2/3 majority for closure -- sorry, I mean cloture. So in 1975 the Senate changed the cloture rule to a 3/5 majority, or 60 of today's 100 senators.

So who's right?

• Has it been there since the beginning?
  • Yes and no. Just because the rule wasn't labeled "filibuster" until later doesn't mean the rule wasn't there. It was. On the other hand, the rule wasn't originally used with irrelevant speeches intended not to continue debate but to prevent a vote. But it didn't take long for that to get started. The Senate has had these irrelevant speeches, now called filibusters, for far longer than it didn't have them.
  • So how can one side say that it's been there only a few decades? Because the most recent change in the rule was only a few decades ago, in 1975. But since that change was a dilution of the rule, it's disingenuous at best to say that the rule has only been there since then.
• Is it in the Constitution?
  • No. But that's irrelevant. The House and Senate rules are not enumerated in the Constitution. Nor should they be, because that would be ridiculous. The Constitution is not a procedural rulebook of Congress.
• Is the filibuster turning us into Commies?
  • Well, if it is, it's been doing so for nearly two centuries, but less so since 1917, and even less than that since 1975.
• Will removing the filibuster put us on the fast track toward fascism?
  • Well, how fascist is the House of Representatives?

So what are the pros and cons, really, of the filibuster?

• Pro:
  • Protects the minority by forcing the majority to compromise, at least enough to get a 3/5 majority.
  • Discourages uncompromising partisanship by requiring compromise to get things done.
• Con:
  • Can be abused by the minority.

The balance between these pros and con can be adjusted by changing the number of votes needed for cloture. Requiring more votes for cloture offers more protection to the minority and requires more compromise and less partisanship, but makes it easier for the minority to abuse the filibuster. Requiring fewer votes makes the filibuster harder to abuse, but offers less protection to the minority and rewards uncompromising partisanship. What's the ideal cloture number? I dunno.

So is the filibuster good for America, or bad for America?

• I'm all for anything that encourages compromise and discourages partisanship. I say let's keep the filibuster. But maybe the cloture number needs to come down again. How about 4/7? That would be 58 of today's 100 senators, down just slightly from 60. Or what about 5/9, which would be 56 of 100 senators? Sure, today's minority will moan and groan about any decrease. But didn't the (other) minority do the same in 1975?

How could the rule be changed?

• Traditionally, Senate rule changes require a 2/3 majority. The 1917 and 1975 changes were made with a 2/3 majority. But the majority party says that is just tradition, not a rule, and they can change rules with a simple majority of 51 senators, and threaten to do just that. I think that would probably make the Senate unstable and flaky. No matter what party is in the majority, I think a Senate that changes its rules with a simple majority would probably generate chaos in American politics.

What does all this have to do with Mark Twain?

The current filibuster controversy, and reading up on the history of the filibuster, and writing this page, have brought to mind Mark Twain's timeless quotes about Congress. With thanks to twainquotes.com:

• Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.
• [Congress has] a kindly feeling for idiots, and a compassion for them, on account of personal experience and heredity.
• Whiskey is carried into [Congressional] committee rooms in demijohns and carried out in demagogues.

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