I wrote about the filibuster in The New York Times last week. Someone asked me if I had gotten much comment on the piece, and I said, “People can’t stop talking about it.” In that spirit, let me weigh in with the detail and nuance that are owed to the Roll Call readership. I want to start with a few bullet points: [IMGCAP(1)]
• The situation is this: Republicans in the Senate, frustrated over their failure to break the resolve of 45 Democrats filibustering two appeals court confirmations, are talking seriously about a bold move on the Senate floor, known to everybody who talks about it as the “nuclear option.”
In effect, it would play out this way: At the time of yet another cloture vote on nominees Priscilla Owen or Miguel Estrada (or a future, unspecified third case) a Senator would raise a constitutional point of order, suggesting that a filibuster (extended debate requiring a supermajority vote to break it) against a nominee is unconstitutional. The chairman, probably the vice president, would agree. The issue would be brought to a vote. The Minority Leader would note that a constitutional issue is itself debatable in the Senate (and thus itself can be filibustered). The Parliamentarian, relying on precedent, would agree. The chairman would recognize a nondebatable motion to table, thereby overruling the Parliamentarian.
If that scenario is gobbledygook to you, the basic point is that Republicans, without changing the rules, would bull through a motion over the objections of the Parliamentarian and the Democrats to force votes on judicial nominees. All hell would break loose, probably affecting all issues for the remainder of the Congress.
• No issue has had more hypocrisy attached to it in Congress than the filibuster. Go back through the decades and read Democrats and Republicans, liberals and conservatives blithely reverse positions as they move from majority to minority or vice versa, or from holding the White House to not. Call it “situational constitutionalism.” As such, take any pronouncements from the mount declaring filibusters unconstitutional on their face with great skepticism.
The backbone of the Republicans’ case that would undergird their nuclear option, as promoted avidly by the ubiquitous law professor Stephen Calabresi, a co-founder of the Anti-Federalist Society (his bio says Federalist Society, but that must be a typo), is that strict constructionists can infer from the fact that the Constitution specifies areas where supermajorities are required, that all other areas perforce must require only majorities.
Of course, as a stricter constructionist, I believe in the words themselves, not inferences from them. Therefore, all of this president’s nominations for the courts have been unconstitutional because he has not sought the advice of the Senate, only its consent (not to mention virtually all nominations of all previous presidents).
But if we want to traffic in inferences, I can play that game as well. The Framers knew all about filibusters and about the traditions of unlimited debate in parliaments and previous legislatures. They wrote a provision in Article II giving each house of Congress the sole power to set its own rules. They did not specify that those rules barred provisions to allow unlimited debate, or to have a higher number than a majority to shut off debate, either on a bill, a confirmation, or a rule itself. Therefore, it is clear that the Framers were willing to allow them in either house. [IMGCAP(2)]
• Remember that Rule XXII, the cloture rule that provides for an end to debate and a specified time for votes, does not raise the bar on passage of a bill or nomination from 50 to 60, or on a rules change from 50 to 67 or two-thirds of those present and voting. It lowers the bar from 100. There is no rule in the Senate — and there has not been one for nearly 200 years — that forces the previous question and an end to debate. Before Rule XXII was instituted in 1917, there was no way, if a single determined Senator took the floor and kept it, to force action on a bill or a nomination. The Senate operated under unlimited debate. It did so through the lifetimes of all the Framers. Not one objected to the way the Senate operated during this time as a violation of their constitutional intent.
Indeed, as George Will noted in an eloquent piece on the filibuster 10 years ago, “There was something very like a filibuster in the First Congress.” If a presiding office declared Rule XXII unconstitutional because it did not allow a majority of the Senate to come to a vote on nominations (or anything else), there would still be no provision in Senate rules to force an end to debate and a vote. Here is the relevant provision in Rule XIX on Senate debate: “No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”
• There is a way to push a minority of filibusterers to end their exercise. It is the way filibusters were dealt with from 1917 until the early 1960s: Bring the Senate to a halt, bring in the cots, and go around the clock until the filibusterers lose their stamina or until there is a sharp public reaction that forces them to back off. When that ordeal was required for a filibuster to be applied and sustained, there were very few attempted; even fewer succeeded.
When Majority Leader Mike Mansfield (D-Mont.) created a new system in 1961, putting issues under filibuster onto a separate track and allowing other legislative business to proceed, it changed the nature of the filibuster. For the first time, there was no price to pay, in physical stamina or from political obloquy, for blocking the nation’s business; all an individual Senator had to do was flag a measure as one he or she would filibuster and the bar automatically was raised. The “hold” as it is currently practiced (and abused) is in essence a threat to filibuster a bill or nomination. Incidentally, holds against nominations, including judicial nominations, have been as rife among Republicans as Democrats. (See “situational constitutionalism,” above.) Not surprisingly, Republicans and Democrats have not hesitated in the past from filibustering judicial or executive branch nominations if it suited them.
Lost in the process of the past decades is this reality check: There is no rule against an old-fashioned filibuster. If Majority Leader Bill Frist (R-Tenn.) and his colleagues are outraged against the Democrats’ filibuster against two appeals court nominees, their first tough recourse is to bring the Senate to a halt and bring in the cots. This kind of filibuster would get immense media attention, the president would weigh in and it would change the nature of the debate. Senate Republicans have not even attempted the traditional approach. Why not? Either they do not want to discomfit themselves, they have higher legislative priorities that they do not want delayed or they fear that the public reaction will be, “Who cares?” But to even talk about the so-called “nuclear option” without using the weapons available to you is not appropriate.
• Reform of the filibuster is desirable. A decade ago, in the Renewing Congress Report I did with Tom Mann of the Brookings Institution, and as first published in Roll Call on April 12, 1993, I suggested a new two-track system: For issues in which a substantial number of Senators felt intensely, the old-fashioned “Mr. Smith-style” filibuster would be employed; for issues in which only one or a handful of Senators could not sustain extended debate or gather enough support to do so, there would a series of votes over a time certain, with the bar going from 60 down to 55 and eventually to 51. Sen. Tom Harkin (D-Iowa) picked up on the gist of the idea that year, and Frist has introduced it as a way to deal with all judicial nominations. As a rule for all seasons, or for all nominations, it won’t work. But as a way to avoid most extraneous and unnecessary holds and delays on nominations and issues, it can.
• The Senate is not the House and should not be. The Senate was designed by the Framers to be the cooling body, guarding against the tyranny of the majority and against the passions of the moment. It has operated for nearly all its existence by unanimous consent. To abolish the cloture rule and force action on nominations, under the theory that majorities should rule, means ultimately altering the fundamental character of the Senate.
The filibuster is basically a conservative instrument; it delays government action in order to overcome intense minority opposition and to build broader popular support. Do conservatives really think they will always be in charge, that impediments to government action will be to their detriment instead of to their advantage? Do constitutionalists really want to stretch the document beyond recognition for a short-term political gain, getting a few of their allies or buddies onto the bench? Listen to George Will (whose views have not changed to fit the times): “Democracy is trivialized when reduced to simple majoritarianism — government by adding machine. A mature, nuanced democracy makes provision for respecting not mere numbers but also intensity of feeling. And ask yourself: Is there anything the nation has ever wanted, broadly and deeply, that a filibuster prevented the government from giving?”