Filibusters Sometimes Serve Purposes

By
Donald Wolfensberger

GOP Sen. Everett McKinley Dirksen of Illinois was asked by a reporter in 1964, when he was minority leader, what he thought of a proposed change in filibuster rules. “Well,” he replied in his distinctive basso profundo, “Ha, ha, ha; and, I might add, ho, ho, ho.”

The Senate and the American people were reminded two weeks ago of what a real filibuster is when Sen. Rand Paul, R-Ky., held forth for nearly 13 hours on the nomination of John O. Brennan to be CIA director.

Paul was using the debate to get an answer from the administration as to whether the president has authority to use aerial drones to kill noncombatant American citizens on U.S. soil. His efforts paid off when Attorney General Eric H. Holder Jr. sent him a letter later that day stating the president did not.

While some criticized Paul for raising a fantastical hypothetical, others credited him with sparking a larger debate on the legal and ethical dimensions of targeted drone killings anywhere.

There are those who make a strong case that filibusters are anti-majoritarian and undemocratic. Common Cause and four House Democrats asked the courts last May to declare filibusters unconstitutional. Their suit was dismissed in December as a political question.

Within the Senate, there is no zeal for outright abolition. However, Democratic Sens. Tom Harkin of Iowa, Tom Udall of New Mexico and Jeff Merkley of Oregon renewed their rules overhaul efforts this year to make filibusters less frequent and easier to end.

Among other things, their proposals would eliminate filibusters on motions to proceed to consider matters; require 41 votes to sustain a filibuster rather than 60 votes to stop one; and force those who threaten filibusters to engage in good old-fashioned, “Mr. Smith Goes to Washington”-style talk-a-thons.

Moreover, they were prepared to invoke the “nuclear” or “constitutional” option of eliciting a ruling from the presiding officer (the vice president) that a simple majority vote could end debate on the rules change instead of the two-thirds vote required by Senate rules.

Senate Majority Leader Harry Reid, D-Nev., hinted last year he might pull that majoritarian trigger at the beginning of this Congress. However, as happened in 2011, he fashioned a bipartisan compromise with Minority Leader Mitch McConnel, R-Ky. It would make it easier to consider legislation and nominations and go to conference with the House, with fewer and shorter filibusters, in return for minority amendment guarantees.

Hopefully the compromise will de-escalate the filibuster wars of threats, counterthreats and retaliation that have left a graveyard of cloture motions and votes, filled amendment trees and dead bills — all with few actual filibusters.

Dirksen’s quip at the top of this column was made during debate on the 1964 Civil Rights Act. Although a staunch defender of filibusters, Dirksen eventually helped round up the two-thirds vote then needed to end what is still the longest filibuster in history — 534 hours, one minute and 51 seconds.

Senate Majority Leader Mike Mansfield, D-Mont., had appealed to Dirksen to put patriotism above partisanship and support cloture. Dirksen, known as “The Wizard of Ooze” for his mellifluous phrasings, responded: “I hope that the time will never come in my political career when the waters of partisanship will flow so swift and so deep as to obscure my estimate of the national interest. ... I trust I can disenthrall myself from all bias . . . and see clearly and cleanly what the issue is and then render an independent judgment.”

Dirksen was pivotal not only in ending the filibuster, but also in ensuring final passage with 27 of the 33 Republican senators. Although he considered parts of the House-passed bill unconstitutional, Dirksen worked with the administration to fashion a substitute bill. As he explained his turnaround, “I am a man of fixed and unbending principles, the first of which is to be flexible at all times.” The filibuster on the Civil Rights Act of 1964, while nettlesome to the impatient, did provide the time and space needed for public education, consensus-building and a compromise that made a critical difference in the outcome.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.