For (and Against) the Filibuster

Paul Greenberg

1/25/2011 12:01:00 AM - Paul Greenberg

Any discussion of whether to end, mend, or generally fiddle with the filibuster might well begin by trying to understand what it is, and why such a practice developed in the U.S. Senate. The filibuster is a way to protect the rights and interest of the minority by allowing its members to speak without being cut off by a simple majority vote. Instead, it takes a supermajority to close debate and proceed to a vote -- 60 votes under the current rule.

The filibuster is one more part of the intricate web of checks and balances undergirding and expanding all those in the Constitution itself, for the Founding Fathers were not afraid of complexity, especially when it came to dividing and controlling government power. It may have been Madison who pointed out that the danger of tyranny is always greatest wherever power is greatest. In a democracy, he noted, it is the majority that has the most power, and therefore should be most restrained.

The filibuster is one of those restraints. It is a product of long tradition and ingrained custom, which are other terms for the weight of practical experience over the years and centuries. Which is why time-honored practices, like the filibuster, should not be lightly cast aside.

The Senate is the home of the filibuster because it was designed by the Founders to be the more deliberative half of the legislative process--the saucer in which the boiing-hot tea of public passions is allowed to simmer before being served up. Whatever the transient winds of politics and whichever party control the levers of power at the shifting moment.

Sometimes it is the Republicans who resort to the filibuster, sometimes the Democrats, depending on whether they're in the majority or minority at the time. There's no better way to hone one's appreciation of the rights of the minority than being in one. The same senator who rails against the "obstructionism" of the filibuster rule when his party is in the majority may take the floor to hail the wisdom of that same rule when his party is reduced to a minority.

It's a good thing the balance of power swings back and forth in this republic; it can give folks a whole different point of view, fleshing out abstract theory with felt experience. It's called putting yourself in the other fellow's shoes. Or being put there by the voters. Which can be an educational experience. It encourages tolerance, even empathy. It may give even politicians a certain historical perspective, which is just what this perennial debate over the filibuster needs from time to time.

That same fund of historical experience provides example after example of how the filibuster canbe abused. And has been. As when the U.S. Senate was the great obstacle to civil rights in this country, and the filibuster the favorite weapon of those who used it to deny rights to their fellow Americans. But the filibuster can be used for good reason, too, as in defense of those rights. Let's not blame the cannon for the direction chosen by those firing it.

The first witness in defense of the filibuster, and maybe the final, convincing one, too, might be Jimmy Stewart. Or at least the character he plays, good old Jefferson Smith, in Frank Capra's "Mr. Smith Goes to Washington." The movie was made in 1939 but it still teaches more effectively than any poli-sci lecture on the filibuster, its cause and effect. Some of not-so-naive Sen. Smith's lines are a lot more relevant to this debate than the remarks for, against, or just vaguely about the filibuster now being made by all too real senators in Washington. For example, here is Sen. Smith insisting on his right to speak, forever if necessary:

"You see, boys forget what their country means by just reading 'the land of the free' in history books. And they get to be men, they forget even more. Liberty's too precious a thing to be buried in books. . . . Men should hold it up in front of them every single day of their lives and say: I'm free to think and to speak. My ancestors couldn't, I can, and my children will. Boys ought to grow up remembering that. . . . Well, I guess the gentlemen are in a pretty tall hurry to get me out of here. . . . And I'm quite willing to go, sir, when they vote it that way -- but before that happens I've got a few things I want to say to this body. I tried to say them once before, and I got stopped colder than a mackerel. Well, I'd like to get them said this time, sir. And as a matter of fact, I'm not going to leave this body until I do get them said."

That is the simple principle the filibuster embodies, and needs to embody. That's why it should be saved.

To save a useful institution like the filibuster doesn't mean it must never be changed. Quite the contrary: Only by changing with the changing needs of the time can its underlying utility, or maybe its very reason for existence, be preserved. For institutions, like anything else, can rust over time. They become impractical, like an iron gate blocking the road ahead rather than just a SLOW sign. Then the temptation to just break through the barrier, tear it down and roar on may become irresistible. So it is with all institutions over time that, no matter what their good intentions at first, become oppressive.

Lest we forget, a minority can oppress a majority, too. Which is what happens when the filibuster -- instead of remaining an extraordinary weapon in the parliamentary arsenal -- becomes just a crude ax blunted by overuse. Which is what the filibuster is in danger of becoming. Because now it's simply assumed that even the most ordinary, needed piece of legislation must be able to muster 60 votes to pass, not just a simple majority. That's not principle at work, it's rust.

How to restore the filibuster to its honored place as a useful tool to be employed only in exceptional circumstances? Like the fire alarm in theaters -- not to be sounded except when clearly needed.

One way to keep the filibuster from being reduced to a routine would be to require that it really be a filibuster: A senator, or groups of senators, would actually have to hold the floor, in fatigued person, for the duration of the filibuster -- all alone if necessary.

Yes, that would be an inconvenience, but if the principle being defended really is a principle, surely it is worth an inconvenience. Having to hold the floor might prove the best test of a senator's sincerity. For if he isn't willing to inconvenience himself on behalf of his ideas, how much can they be worth

Another reform worth making would be to do away with the secret hold that senators can now place on a bill or a nomination. That way, they don't have to take public responsibility for their stands. Which is the very reverse of accountability.

So, yes, let's save the filibuster. It can be an invaluable tool, the last defense against a heedless majority. But let's save it by discouraging its routine abuse, and so clean away the accumulated rust that, far from strengthening it, has weakened it. Mend it, don't end it.