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Filibuster: The Tactic Both Parties Hate to Love

The Senate is being held hostage! It must be the Democrats! No, it’s the Republicans! It is a siege against democracy, contrary to the Founder’s beliefs!

We have been hearing a lot about the filibuster since the early onset of the Great Recession, when Republicans witnessed the loss of its of supermajority powers after public anger swept through the incumbent party. Congress’ disastrous 78.4% public disapproval rating comes as no shock with the political atmosphere becoming increasingly multipolar and parties becoming more deeply entrenched in their respective ideologies. It is understandable that tense and long debates can cause a political gridlock on large issues of national interest with parties trying to sway policy and opinion in their favor. However, the current political situation delved into the “pathetic and petty” realm as the use of filibuster tactic drastically increased to include basic government functions like cabinet and judge appointments and basic annual funding legislation for basic government operations.

A filibuster is a type of Congressional procedure that gives an individual or group to the right to an unlimited debate that can effectively delay or even cancel a decision vote on the issue at hand. Naturally, many would decry this tactic as a gross injustice targeted against the majority party and thus the majority of the American people, contrary to the vision of the Founding Fathers. But it is also important to recognize the importance of the filibuster as a tool for the minority to ensure its voice is heard and prevent the majority from steamrolling all its legislation into law. Yet, when one turns on C-SPAN or watches clips of Senate floor debates undergoing a filibuster, the hilarity of the scene can understandably cause resentment by some in the public sphere. Some of the most memorable (and controversial) Senate debates in U.S. history occurred during a filibuster. Senator Strom Thurmond, a fierce supporter of state’s rights vowed to challenge any encroachment of federal power upon the states. In 1957, with no party holding a supermajority to invoke cloture on filibusters, Senator Thurmond took to the podium to defeat a proposed voting rights bill (H.R. 6127). Gathering all his reading material (from state election statutes to Supreme Court dissertations) and armed with sandwiches made by his wife, he spoke for a staggering 24 hours and 18 minutes without any breaks. The bill was defeated. Another amusing yet sad example came from Senator Byrd and his Senate colleagues trying to prevent the passage of the now famous Civil Rights Act of 1964. Byrd spoke nonstop for 14 days and other speakers rallied around him to continue the filibuster for 57 consecutive working days. However, the bill passed with a large majority. Given this rather extreme example of filibuster-ing, it comes as no surprise that many see this tactic no longer as a legitimate tool for the minority but one that can virtually shut down the legislative branch.

During this current Congressional session (2010-2012), the minority Republicans have held an impressive 62 filibusters. Democrats are at fault as well. The more regular use of the filibuster actually began under the Clinton Administration. Washington-based watchdog Common Cause recently filed a lawsuit in U.S. Federal District Court of Washington D.C. to remove the filibuster from Senate rules. The group argues that the Senate can indeed set its own rules on how the chamber functions but not if that rule is deemed unconstitutional. More specifically, Senate rule XXII requires a 60% “supermajority” (60 votes out of 100) to end a never-ending filibuster (cloture), not a simple majority of 51 votes. Common Cause cites that the Constitution only explicitly calls for a supermajority like ratifying treaties and impeachment (2/3 majority) or adding new amendments to the Constitution (3/4 majority). Since the Founders took the time to specifically state what constitutes a supermajority, the group argues a valid point that Senate rule XXII can be challenged on its merits of constitutionality since Senate rules are not mentioned as part of a supermajority requirement, thus it would have to be a simple majority.

The lawsuit provides a thought-provoking and compelling reason to force the Senate to end filibusters through a simple majority, yet it will definitely be hard to overturn two centuries of established Congressional tradition. However, the approach that Common Cause takes to tackle this problem is brilliant and should be given praise. The group seeks to force change to Senate rules through the judicial system and not the legislative branch – for good reason. Simply put: politicians in the majority, whether Republican or Democrat, love to hate the filibuster. Yet, majorities always fall into minorities. That is life in politics. Those in power can chastise the filibuster but they know once they are relegated to minority status, they will hold onto that valuable tool for dear life. Politicians won’t change their own backyard rules, meaning the people are powerless on this front. For once in America, this lawsuit has merits so let’s all rally behind….the lawyers!

–  Alex Gardinier

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4 comments

  1. This reads like a politician campaigns — your evocation of the FFs [1] doesn’t actually tackle their arguments; [2] doesn’t recognize that differences in their ideologies, instead treating them monolithically; and [3] fails to make note that the Senate was designed to protect sparsely population states, as opposed to the population ratios used for House seating. You also argue that the GOP is subverting the democracy by using the filibuster, then call their tactics (62 uses) “impressive.” And you don’t bring up your argument — that a case challenging the constitutionality, which you define as the first case worth supporting, ought to receive our support (what happened to Roe v. Wade? Brown v. Ed? etc.?). Also, don’t waste all of our time defining a filibuster (it’s common procedure — you even write that it has 200 years of precedent). Bring your “A-game” next time, Alex.

    • To: J Harris

      First off, I really want to thank you for your comment on my article (seriously). It takes time and effort to write a rebuttal and I’ll be frank, you’re one of the first “commenters” to actually write an in-depth criticism about any article written on the still very young PB. So thank you! We love this kind of debate. That’s why the PB exists.

      Now if I may I would just like to respond to some of your points:

      1)…That my use of Founding Fathers doesn’t tackle their arguments and doesn’t talk about the differences in their ideologies.
      – My article is not about what each Founding Father thought regarding the use of the filibuster. I could go on and highlight the differences in ideologies between some FFs like Madison and Jefferson but at that level my article would simply turn into a dull research paper. Rather, what is more important for this article is the final product of their aggregate opinions: the Constitution. The point of my article is not what each FF thought of the filibuster but simply questioning the constitutionality of requiring a “supermajority” to end one (cloture) instead of a simple majority. I am taking a more “strict constructionist” approach to this issue as I mentioned before that the Constitution specifically outlines only six instances where Congress could require a supermajority vote (like impeachment, ratifying treaties, overriding veto). By specifically including these exceptions in the Constitution, the document, I argue, excluded other exceptions such as Senate rule XXII.

      2)…That I failed to note the design and specific purpose of the Senate and House of Representatives.
      – I do agree with you that I should have briefly mentioned the Senate’s unique role to protect less-populous states but I am not questioning the right of this body to uphold the ideal of promoting minority opinion. I never opposed the use of a filibuster. I think the ideal of unlimited debate is central to the role of the Senate. The filibuster was originally designed specifically for the Senate because it was viewed as a body of elite and “courteous” gentlemen who were more apt to find common ground through extended debate than the House of Representatives, a more grassroots makeup. It’s just sad to see that is not the case today…from both parties.

      3)…That I call the GOP subverting democracy then call their tactics “impressive”
      – Yes, the GOP does harm Congressional stability and effectiveness but I also note the next line that Democrats are just as responsible as well. Don’t you find the GOP starting 62 filibusters “impressive”? That is some serious and exhausting discourse, regardless of the party affiliation.
      *Here are the statsitcs for the “impressive” use of the filibuster: http://www.washingtonpost.com/blogs/ezra-klein/post/the-history-of-the-filibuster-in-one-graph/2012/05/15/gIQAVHf0RU_blog.html

      4)…That it is the first case worth supporting
      – Nowhere in my article do I say it’s the first case worth supporting. Perhaps you may have misread my last line when I say, “For once in America, this lawsuit has merits so let’s all rally behind the lawyers”. The U.S. has a notorious reputation where anyone can sue anybody for anything and thus lawyers have a particularly bad reputation. I like to end articles with a rather witty line (and lease I think it is!).

      5)… That I am “wasting all of our [the reader’s] time defining a filibuster”
      – While you and I may understand the definition of a filibuster (I can assume we are both Political Science students?) I was personally quite surprised how few people truly understood the term. I am from the United States and we all hear about the “filibuster” yet few people know that it takes 60 votes, not a typical majority of 51, to bring about a cloture and end a filibuster.
      You specify that I am “wasting time “ for our readers to define what a filibuster is yet that specific line represents only 37 out of 827 total words. ManyI wrote this with the basic assumption of “maybe the reader [non-American] doesn’t know the term “filibuster”? After all, we are in Canada.

      Thank you for your comment.

      Sincerely,

      Alexander Gardinier

      Head Journalist
      The Political Bouillon

  2. [1] Fair enough — but the Constitution’s ambiguity on the subject (that it mentions the supermajority’s need only those few times) becomes trivial when considering 200 years of precedent.
    [2] I feel the same way. But politics is a game, in which filibusters are a tool. May the best Party win.
    [3] It’s not impressive at all. It’s rather a sign of desperation — acting either a) like children or b) out of self-righteousness. The GOP, after all, controls only 1/3 of gov’t — they should maximize their influence, not obstruct all others’.
    [4] “For once in America…” literally means “this occasion only.” You should really be more careful.
    [5] It does waste readers time — a) filibusters DO exist in Canada, but they’re less often used (here’s a recent example: http://www.huffingtonpost.ca/2011/06/24/canada-post-back-to-work-filibuster-ndp_n_883682.html); and, b) it’s called a hyperlink.

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