Ending the easy-as-it-goes filibuster
On April 10, 1964, at 4:55 in the afternoon, President Lyndon Johnson spoke on the telephone with Sen. Robert Byrd of West Virginia about a federal judgeship.
In the course of their conversation, preserved on tape and available on the internet, LBJ briefly raised the subject of the Senate filibuster against what eventually became the Civil Rights Act of 1964.
Byrd was a leader of the filibuster forces.
“I’ve got to pass that bill,” Johnson says.
“I hope to hell we beat it,” answers Byrd, who would hold the floor for hours in opposition to the legislation. The filibuster dragged on for 11 weeks.
“I might send you off on a tour a few days before they vote cloture,” Johnson joked. He wasn’t joking when he told Byrd, “Make them vote” on the bill.
In the next several weeks, a Democratic president and a Democratic Congress, both eager for legislative triumphs, will confront the updated filibuster of 2021.
At stake for Democrats, the party of government, is passage of an infrastructure bill that embodies Joe Biden’s promise to “build back better” as well as legislation to safeguard elections and to enhance democratic participation by a broad swath of Americans.
The filibuster – the ability of a minority of senators to thwart the majority – is not organic: it’s mentioned nowhere in the Constitution. Yet, it has a long history. A hallmark of the Senate is unlimited debate – debate to the point of exhaustion.
But that’s the rub: filibustering is no longer exhausting, as it was before 1975. Not wanting to tax the stamina of an aging Senate, then-majority leader Mike Mansfield killed the talk-till-you-drop filibuster that was in place in 1964, for instance.
In its stead, the Senate adopted the clean, easy-to-wear filibuster of today. It’s so clean and so easy that the legislative stall has become a way of life for the Senate. One senator, or 50, can block action while barely stirring from their seats.
In a closely divided Senate with partisan lines drawn tight, it’s become ever so hard to overcome the filibustering mania with cloture – since 1975 it’s taken the votes of 60 senators to end debate and bring the measure in question to an up or down vote.
(To show how flexible the Senate can be about the filibuster, the cloture threshold before 1975 was 67. Cloture was non-existent until 1917, when it was suggested to senators by President Woodrow Wilson, who declared, as the U.S. prepared to enter World War I, that the Senate was “the only legislative body in the world which cannot act when its majority is ready for action.
“A little group of willful men,” Wilson said, “representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.”)
The truth is, invoking cloture has never been easy. At the same time, filibustering has always been rare, until recently.
Norm Ornstein, a friend of government at the conservative American Enterprise Institute, has offered some suggestions. Recognizing that killing the monster is impossible, given the political realities and bipartisan inclinations of moderate Democrats West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, Ornstein has suggested simply lowering the cloture threshold to 55.
Otherwise, he’s suggested restoring the filibuster’s original intent – lots and lots of debate – by “requiring at least two-fifths of the full Senate, or 40 senators, to keep debating instead requiring 60 to end debate.
“The burden would fall to the minority, who’d have to be prepared for several votes … and if only once they couldn’t muster 40 … debate would end, making way for a vote on final passage.”
Alternatively, Ornstein suggests the Senate “go back to the ‘present and voting’ standard” in place prior to 1975.
“A shift to three-fifths of the Senate ‘present and voting'” would … require” painful round-the-clock talkathons which the minority would be hard-pressed to maintain and which would have the added benefit of sharping the “spotlight” on aspects of an issue the minority may not want fully exposed (with the reverse also being true).
Senators love long weekends, they insist they must get back to their states to take the public pulse. Imagine, Ornstein says, having them hang around Washington to answer weekend or holiday quorum calls required to keep a filibuster going.
Inconvenience alone might be reason enough to call off the filibuster dogs, most of the time.
Ornstein’s more high-minded yet practical goal is to … find some way not to eliminate the filibuster, but to reform it to fit” the Manchin “vision” of nearly unfettered debate and minority party participation in the law-making process.
Richard Robbins lives in Uniontown. His latest book, “JFK Rising,” is available on Amazon. He can be reached at dick.l.robbins@gmail.com.