GOP Should Handle Filibusters the Old-Fashioned Way

Posted November 16, 2004 at 4:01pm

Some things just keep coming back, like Rasputin after being stabbed, poisoned, shot and defenestrated, or like Scream II and III. The Congressional equivalent is the filibuster. [IMGCAP(1)]

I didn’t want to address the issue again, but Senate Majority Leader Bill Frist (R-Tenn.) made me do it. And while I have written on this subject before, there are enough new Members and staffers around that a new education effort is in order.

Frist made me do it, of course, because of his multipronged effort during the past week to fire warning shots on judicial nominations across the bow of the Democrats’ Senate ship.

He began with an address to the Federalist Society last Thursday evening, and followed that up with appearances on Fox News Sunday and other television shows. Frist called filibustering judicial nominations “radical” and “dangerous” and said it “must be overcome.” He openly discussed the so-called “nuclear option” in which Senate Republicans would, in effect, unilaterally change the Senate rules to bar such filibusters. (How far they would go is not clear: The White House has many executive nominations ahead as well.)

Now for some straight talk on the filibuster. First, frustration over extended debate in the Senate — and the ability of an intense minority to block the will of the majority — is as old as the Senate itself. Presidents hate filibusters; so do Senate Majority Leaders.

Why do they hate it? Because cloture, which requires a supermajority to stop debate and force action, is a fundamentally conservative tool to block or retard activist government. By and large, presidents are activists, and Senate Majority Leaders want action.

Ironically, the filibuster as we know it — and the supermajority requirement for cloture — was a reform to expedite action, not to block it. Prior to 1917, there was, in effect, no limit on debate in the Senate. Any one Senator, or any small group of Senators, could keep debate going indefinitely.

That ability was a part of the unique role of the Senate, which was designed by the Framers to slow the process and add to its deliberative nature. Just as the Senate itself is not representative of the majority of the country — Senators from small states, which collectively represent a fraction of the overall population of the country, command a majority of votes in the body — the Senate’s unique legislative procedures, including its reliance on unanimous consent and its tradition of sensitivity to minority viewpoints via unlimited debate, are extensions of the Framers’ conservative views on governance.

The rules change that provided some limits on debate — creating a bar of two-thirds of Senators present and voting — was urged upon the Senate by then-President Woodrow Wilson and instituted after a handful of Senators blocked action to arm merchant ships prior to American entry into World War I.

The two-thirds rule remained in effect until 1975, when frustration over the use of filibusters led to a lowering of the bar to 60 Senators. That is where it stands today.

Frist wants action on President Bush’s nominees to appeals courts, and he fears a filibuster led by Democrats against a controversial Supreme Court nomination. So he is making the case that filibusters against court nominees are unconstitutional.

It is a tough case to make, but that hasn’t stopped his friends in the Federalist Society, who are using arguments wielded originally by the anti-Federalists. They contend that since the Constitution specifies areas in which supermajorities are required, we can infer that in all other areas, simple majorities will do.

One might think that strict constructionists would look to the direct language of the Constitution, rather than inferences from it. But one can infer from their legal reasoning that, for them, the ends justify the means. Otherwise, we would have howls of outrage from Stephen Calabresi and other Federalist Society members over the House’s efforts to unilaterally change the quorum requirement in their rules — something that goes against the clear, expressed, direct language of Article I, which makes crystal clear when a number other than a majority can constitute a quorum.

Of course, the Framers knew all about unlimited debate and its tradition in parliaments and earlier American legislatures. They saw, as George F. Will pointed out many years ago, that there was a filibuster in the very First Congress. When Republicans successfully led a filibuster in 1968 against President Lyndon Johnson’s nominee for chief justice to the Supreme Court, Abe Fortas, they and their strict constructionist friends somehow did not see that action as unconstitutional.

But that was then. Now, with 55 Republicans in the Senate, Frist is ready to act to change the rules. Here is the likely option. At some point early next year, as Senate Democrats are blocking action on a Bush judicial nominee and the Republicans have another cloture vote that falls short of the 60 needed to end debate, Frist will raise a constitutional point of order, saying that a supermajority requirement for confirmation of a judicial nominee is unconstitutional. The vice president, sitting in the chair, will agree.

The issue will be brought to a vote, in which a simple majority can affirm the ruling of the chair. But — here’s the rub — a constitutional point of order in the Senate is itself debatable, and can itself be filibustered. That issue will undoubtedly be raised by Sen. Harry Reid of Nevada, the Minority Leader, and any honest Parliamentarian will agree.

The vice president will overrule the Parliamentarian and recognize a motion to table, which is not debatable. Over the howls of outrage of Democrats — led no doubt by West Virginia Sen. Robert Byrd — the Republicans will vote, affirm the ruling of the chair, and pass the judicial nomination by a simple majority.

This set of actions is something Frist seriously contemplated last year. He didn’t act for several reasons. One is the damage that would come to Senate comity. Another is that he likely didn’t have the votes among his 51 Republicans (and his surrogate 52nd, Democrat Zell Miller of Georgia).

Now, he may well have the votes, but it is not a slam dunk. Republican Sens. John McCain (Ariz.), Chuck Hagel (Neb.), Lincoln Chafee (R.I.), Susan Collins (Maine), Olympia Snowe (Maine), Arlen Specter (Pa.) and Dick Lugar (Ind.), among others, have to be agonizing over the whirlwind that they and everybody else may reap from this action. Other veteran Republican Senators, with a longer view of history, also have to know that there will come a time when activist liberal Democrats are back in the saddle, and that this precedent, which can be extended effortlessly to various and sundry policy matters, will come back to haunt conservatives.

Still, given the presidential ambitions several of these Senators have, the loyalty Republicans feel toward the president, and the squeeze being put on Specter, the votes are probably there.

Still, Frist should think twice, three times and even four, before he acts. Rule XXII, the cloture rule, is not the only tool in the kit for Senators to block action. Consider Rule XIX, which says in part, “No Senator shall interrupt another Senator in debate without his consent.” Consider that basically nothing happens in the Senate without unanimous consent — and that in the past, single Senators such as James Allen (Ala.), Jesse Helms (N.C.) and Howard Metzenbaum (Ohio) have been able to tie the Senate in knots repeatedly on their own. Now imagine if the Republicans’ action enrages 40 or more Allens and Metzenbaums.

What is most ridiculous here is that Frist has his finger on the nuclear trigger — and is ready to risk Mutually Assured Destruction — without even beginning to use the traditional tools available to him to break these filibusters.

Back in the 1950s, when filibusters against civil rights bills were almost routine, the Senate would force the filibusterers to take to the floor and go around the clock, bringing the Senate to a halt and letting the public see what was going on. The way to overcome intense minorities is to do just that. If anything, the live television feeds on C-SPAN would make the images even more resounding today. If the filibusterers’ actions are outrageous and unsupportable, let the public react. Their resolve will eventually be broken.

Last year, Senate Republicans took a faux step in this direction with a 35-hour debate to highlight the issue. But it wasn’t serious.

So get serious. When Democrats filibuster Miguel Estrada or Priscilla Owen, make them take to the Senate floor around the clock. Stop every other Senate action. Set up cots outside the Senate floor, just as Johnson, then-Majority Leader, did in 1957 and 1958. The press will eat up the drama.

If the American public believes the president has every right to get votes on his appeals court nominees, and if it believes the Democrats are unfairly blocking action on Social Security, the budget or tort reform, there will be enough of a public reaction that Democrats will eventually defer.

The pampered, prissy, protected Senate apparently does not have the stamina or cojones to do what historically and traditionally has been done to force action in a body where minority rights and power are zealously guarded. So this conventional action is soon to be supplanted by the nuclear bomb. Not smart.

Norman Ornstein is a resident scholar at the American Enterprise Institute.