There is an old movie known to cinema historians and late night TV insomniacs titled, “Mr. Smith Goes to Washington.” It’s about a bumpkin who finds himself appointed to a vacant seat in the U.S. Senate by political bosses who hope to take advantage of his naivete.
The plan backfires, and in the climactic scene, the neophyte, memorably played by Jimmy Stewart, conducts a nearly 24-hour one-man filibuster attempting to stave off a graft-ridden dam project, before collapsing from exhaustion.
That heroic stand against the tyranny of the majority may be the only vision some people have of what a Senate filibuster looks like. So since we’re going to be hearing the word a lot as Senate hearings loom for Supreme Court nominee Neil Gorsuch, and because not all of us are constitutional scholars or political science majors, it might be instructive to spend some time on the subject today.
With rare exceptions (Rand Paul and Bernie Sanders of recent vintage come to mind), they don’t make filibusters like Jimmy Stewart’s lone wolf celluloid version any more.
2013: Sen. Rand Paul filibusters over ‘terrorist’ killings, delays CIA confirmation
The modern filibuster is far less dramatic – but when used by the minority party, it is far more common, and far more effective in thwarting the will of the majority.
(Fun fact: “Filibuster” comes from a Dutch word for privateers – independent pirates that plundered merchant ships or held them for ransom.)
For most of the Republic’s first two centuries, the Senate considered one bill at a time, and the only way for a single senator, or a committed minority, to delay or defeat a bill they didn’t like was to use the method described above. All Senate business stopped until either the speaker or speakers prevailed or ran out of gas, or the body voted to end debate (cloture), which takes a two-thirds majority – 60 votes.
But in 1970, the late Senate Majority Leader Mike Mansfield led a movement to institute a “two-track” system, which eliminated the one-bill-at-a-time tradition and allowed two or more bills to be considered simultaneously.
As a result, when the minority party wanted to derail a bill or nomination, and the majority party didn’t have the 60 votes needed for cloture, there were no hours-long speeches needed to stymie the majority. An opposition senator simply announced his intention to filibuster and the issue was set aside – often never to be heard from again – while the Senate moved on to other business.
The effect of the two-track system was dramatic. Between 1917 and 1970 there were only 58 filibusters, according to research by California Congressman Tom McClintock. Since 1970, there have been 1,700.
That’s why the majority party in the Senate – such as the 52-48 advantage the Republicans hold today – doesn’t really have the power of a majority in all issues unless it has the 60 votes needed to invoke cloture.
Whether that’s good or bad depends on one’s perspective – and perhaps on whether one’s party is in the majority.
People who oppose the expanded use of filibusters say that they frustrate the will of the people, who vote one party or the other into control of the Senate presumably because they approve of that party’s philosophy. Allowing the minority to derail or delay every bill the party in power proposes, they say, makes the public lose faith in the democratic process.
Others, such as the late Mansfield, a Democrat, and current Sen. Orrin Hatch, a Republican, have argued passionately in favor of the filibuster. They contend that in order to maintain its standing as “the world’s greatest deliberative body,” the Senate must allow for full and unfettered discussion of issues, and make major changes in our government only by significant majority votes rather than on the whims of a slim majority by one party or the other.
The latter argument was more persuasive in the not-too-distant past, when collegiality reigned in the Senate and disagreement was not the angry partisan chasm it is today.
The first crack in the filibuster tradition came in 2013, as a result of then-Senate Majority Leader Harry Reid’s pique at the then-Republican minority’s refusal to confirm President Barack Obama’s judicial nominees. So Reid rammed through a rules change that reduced the number of votes needed to enforce cloture on debate regarding administrative and judicial nominees (other than Supreme Court nominees) from 60 to a simple majority of 51.
As a result, 98 judicial nominees were eventually affirmed.
But also as a result, with the majority shoe now on the other foot, Senate Republicans have been able to confirm President Donald Trump’s cabinet nominees that formerly might have been rejected.
The 60-vote threshold is still in effect, at the moment, for legislation and Supreme Court nominees. But with Democratic opposition building against Gorsuch, the temptation for Senate Majority Leader Mitch McConnell to reduce the cloture threshold to 51 – the so-called “nuclear option” – might be irresistible.
And if that happens, can expanding the rule to legislative issues be far behind?
I understand the frustration, but I don’t think eliminating the filibuster is good for the democracy. I’d rather see the Senate revisit and eliminate the two-track system.
Meanwhile, as Obama has said, elections have consequences, and today’s Democrats are reaping what Harry Reid sowed four years ago.
Ted Diadiun is a member of the editorial board of cleveland.com and The Plain Dealer.
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