Filibuster: Friend or Foe? Should Rules Be Changed?
April 10, 2005

by Joseph P. Tartaro
Executive Editor

Most people who watch the 1939 Frank Capra movie “Mr. Smith Goes to Washington” usually decide that the US Senate’s unique extension of unlimited debate rule called a “filibuster” is a good thing.

But in modern times, the filibuster, which dates back to the 1840s, is often vilified as a means of stonewalling the public interest. Those who are most critical of the filibuster are usually the people or political party whose ideology or policy agenda is being thwarted by a filibuster, or even a threat of a filibuster. Senate rules contain no motion to force a vote. A vote occurs only once debate ends.

Lately it has been Republican leaders and their supporting news commentators who have been discussing a change in the Senate rules because Democrats in the upper house have been blocking confirmation votes on many of President Bush’s nominees for federal court vacancies.

Senate Majority Leader Bill Frist (R-TN) in March threatened to apply what some have referred to as the “nuclear option” to debates and filibusters on judicial nominees by changing the Senate’s rules to allow, at a certain point in debate, a simple majority vote to cut off debate on the confirmation of judicial nominees. The existing rule now requires a 60% majority of members to end debate.

Of course, changing the rules for just one class of votes would soon require a change for all legislation.

According to Associated Press, Frist “has proposed reducing the number of senators needed to force a vote on a judicial nominee on a sliding scale. The number needed would drop by three votes after each successive cloture (or debate ending) roll call until only 51 votes, or a simple majority, would be needed.”

According to Edward I. Koch, a former mayor of New York City and former congressman, a similar proposal was made by Democratic Sens. Joe Lieberman (D-CT) and Tom Harkin (D-IA) in 1995. Over the years, both Democrats and Republicans have exercised the right to unlimited debate, using the filibuster to prevent an up-or-down vote on matters before the Senate.

Koch noted that in the 1950s and ’60s, filibusters were primarily the weapon of Southern Democrats seeking to prevent passage of civil rights legislation.

Senate historians say that using the filibuster to delay debate or block legislation has a long history. In the United States, the term filibuster—from a Dutch word meaning “pirate”—became popular in the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill.

In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it became necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Sen. Henry Clay (KY), Clay threatened to change Senate rules to allow the majority to close debate. Sen. Thomas Hart Benton (MO) angrily rebuked his colleague, accusing Clay of trying to stifle the Senate’s right to unlimited debate. Unlimited debate remained in place in the Senate until 1917, when—at the suggestion of President Woodrow Wilson—the Senate adopted a rule that allowed the Senate to end a debate with a two-thirds majority vote—a tactic known as “cloture.”

The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.

Americans who remember that Jimmy Stewart conducted an hours-long suspenseful filibuster as Sen. Jefferson Smith in Capra’s film may also recall that he was blocking a huge land grab by the corrupt senior senator from his state, played by Claude Rains, at the demand of a big-money political broker played by Edward Arnold. The land the bad pols wanted had previously been set aside for a community youth project. It was only the one-senator’s filibuster that thwarted evil and corrupt politicians in the film, as Capra showed that the filibuster was one of the few ways to block the tyranny of a narrow but powerful majority of the Senate.

In his early March column for Newsmax.com, Koch poses some questions and provides his answer: “Should the permissible goal of filibuster be to force the president to withdraw a candidate or a piece of legislation from consideration? Or should it be to permit the opponents of a judicial candidate or of pending legislation adequate time to influence their colleagues’ mindset and to rally public opinion. I think it should be the latter.”

Koch sees no reason to change the rules for supposed “super majorities” to gain momentary partisan advantage because he predicts that such a change could work against the Republicans when and if the Democrats regain majority control of the Senate and/or the White House.

He is not alone in recommending against such a change. Gun Owners of America (GOA) also opposes it. GOA noted that last year, the renewal of the semi-auto ban had 52 votes in the Senate—a clear majority. President Bush had agreed to sign it into law. And sponsors had the ability to tack it onto a huge must-pass money bill in the House.

Grassroots opposition to the gun ban renewal helped, as did gun rights lobbying on Capitol Hill by various organizations. But GOA says that their enlistment of a friendly senator to threaten a filibuster was what ultimately kept the semi-auto ban out of the Department of Defense authorization bill.

In similar fashion, a filibuster by former Sen. Bob Smith (R-NH) slowed down post-Columbine legislation. GOA notes that had it not been for that filibuster, we would have been saddled with legislation which would have: effectively eliminated gun shows; imposed a semi-automatic import ban; required that you keep trigger locks on your guns at all times, and implemented a lifetime gun ban for playground fights and other juvenile indiscretions.

The bottom line? Filibusters have saved the day for gunowners and countless others. The rules should not be changed.

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