" A democracy is two wolves and a small lamb voting on what to have for dinner. A representative republic is a well-armed lamb contesting the vote"

                                         - unknown (widely mis-attributed to Ben Franklin)-

Overview

The filibuster has been in the news lately. It is an evil tool used by the Republicans to block progress on important initiatives that the Democrats are trying to put forward to fix what is wrong with the country. At least, that is what the Democrats would have us believe at this moment in history. In fact, the filibuster is a tool that has evolved over time to address what the Founders have termed "the tyranny of majority". Using the principle defined by Thomas Jefferson that all are "endowed by their creator certain inalienable rights; among them are life, liberty and the pursuit of happiness", a straight up majority may threaten the rights of those in the minority. This situation was considered untenable by the Founders. When the liberty of one group, or even one individual was threatened, then the liberty of all was at risk.

There were checks built into the Constitution to balance these competing interests. The House of Representatives is based on population, and by serving a two year term acts as a barometer of public sentiment. The Senate provides an equal voice to all states, large and small, populous or not. It's six year term is designed to be less subject to the public sentiment of the moment, or even the sitting President. A single senate term will survive 3 House election cycles and two Presidential elections. This was done by design to allow senators the freedom to think more freely in the long term. They were to be more deliberative, and less reactionary.

Still, no matter how well designed a system is, partisan politics will attempt to subvert it. This is witness most recently in the attempts of the current majority seeking to revamp the healthcare system. The results of the Massachusetts election have removed their filibuster-proof majority. Now daily reports look at the strategies that can allow the healthcare reform legislation to move forward in spite of filibuster. There is even talk of changing Senate rules to eliminate the filibuster in the name of making progress. This would be short-sighted at best, and a disastrous precedent at worst.

George Washington made some of the most insightful remarks on the principle of protecting the rights of the minority in his comments on partisan politics. To quote:
"Let me warn you in the most solemn manner against the baneful effects of the spirit of Party ... The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline to the minds of men to seek security and repose in the absolute power of an individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty… The common and continual mischiefs of the spirit of Party are sufficient enough to make it in the interest and the duty of a wise people to discourage and restrain it."  (Farewell address, Sep 19, 1796)

Filibuster as a tactic can be traced back as far as Cato the Younger of ancient Rome. The Roman Senate rules stated that all business must be concluded by dusk. Cato, when standing in opposition to a measure, would take the floor and continue to speak until the sun set, while refusing to yield the floor, thus delaying action on the measure. The filibuster has been adopted by the western democratic model, primarily among the English speaking peoples. The United States Senate, under current rules, permits a senator or series of senators "to speak for as long as they wish, on any topic they choose unless 3/5 of the Senate, duly chosen and sworn, brings debate to a close by invoking cloture."

This is a senate rule having roots as far back as 1789, when debate began over a rule allowing the senate "to move the previous question" ending debate and moving to a vote. Aaron Burr argued against the rule claiming that it was redundant, had only been used once in the preceding four years, and should be eliminated. The Senate acceded in 1806, and the loophole was opened that evolved into today's current filibuster. It remained a theoretical option and was not used at all until 1837. The first critical use of the filibuster occurred in the debate over the charter of the Second Bank of the United States, backed by Senator Henry Clay. Leading the opposition was Senator William King, who threatened filibuster, saying that he would maintain debate and delay the recess of the Senate over the winter. Other senators backed King and Clay relented.

The filibuster has since been used to varying degrees and for varying purposes ever since. Normally it is invoked when the majority position is not one held in broad consensus. An issue or bill, such as healthcare reform, is crafted in terms that perceived by the minority as wrong headed, opposed by the senator's constituency, or in conflict with the senator's ideology in such extreme degree that he feels the need to oppose it at all costs. More often than not, it is threatened to bring the majority back to the negotiating table. Partisanship, as previously examined, was anathema to the original Founders concept of America. The system is designed to make it difficult to enact an agenda without broad support in both the Senate and among the general public.

In the early 1960s after a series of filibusters by Southern senators to block civil rights legislation, a two track system was created by then Senate Minority Whip Robert Byrd (D-WV). It allowed filibustered legislation to remain as unfinished business and allowed the senate to move onto other business. This is a two edged sword. It allows the senate to take action on what it can, but it allows the threat of filibuster to sidetrack issues and kick them down the road, rather than negotiate broad consensus.

This sends all legislation along the path of least resistance. Votes are lined up and counted in advance. Deals are cut. Promises are made. Making legislation is like making sausage - it requires a generous amount of pork. When filibusters are threatened, the issues are tabled. We have seen this during the Bush years over judicial nominees to the Federal Courts. The threat of filibuster blocked the nominations of several nominees in seats that still sit vacant. It was this threat during the Roberts and Alito nominations to the Supreme Court that caused Senator John McCain to form his "gang of 14" who would refuse to support a filibuster, moving those nominations to confirmation.

The hyper-partisanship of the current body politic feeds on this. Rather than crafting meaningful and useful solutions to the challenges facing America, the most vocal partisans, usually located on the far extremes and outside of the actual government, hijack the debate. Members of the House, who feel the most pressure due to the short periods between re-election, find their political survival contingent on pleasing these extremes. This reflexive lurch to the extremes then gives the impression that the senate, in doing it's job, is slow and unresponsive - which is their function. Radical change to the structure of America should not be easy or partisan, it should be deliberative and broadly accepted.

It is not unusual that the filibuster cited most often as an argument against the tactic is the record setting one staged by Senator Strom Thurmond (at the time D-SC) who spoke for 24 hours, 18 minutes against the Civil Rights Act of 1957. It is seen as a last grab to preserve racism, and has tainted the entire concept that the filibuster rests on - which is the right of the minority view to defend it's case, and to be heard.. We do not argue for Mr. Thurmond's view, but the filibuster served it's purpose. Thurmond was heard, and the country along with his fellow senators weighed their position. It sparked a debate whereby a broad consensus was reached throughout the country that the Civil Rights Act should be enacted. Had Thurmond and the Democratic caucus proceeded in his view on a strictly party line vote, using the same methods of presuasion and intmidation that were part in parcel in cobbling together the healthcare package, the Act would have been defeated.

Common Sense Dictates 

Ultimately, it is up to the people to decide. The purpose of the filibuster is to defend the right of the minority view to present it's case and persuade others to the rightness of that view. Lone Senators acting in narrow or abhorrent interests will probably not be able to prevail against a cloture vote. A group of senators acting together may hold against cloture as the public weighs in on the rightness of their cause. There is nothing wrong with this - it is what was intended by the Founders. Senators and Members of the House are to represent those who have elected them. When the group of Senators is a partisan split, and that split is as able to preserve filibuster against cloture, then the answer is not to eliminate the filibuster. It is to return to the negotiating table and to find a better answer for the American people. If negotiation is not possible, then the measure should be tabled until the next election. This will allow candidates to present their views, and voters to express their agreement with those views by electing them to office. A well armed lamb may lose in the end, but it should not be disarmed  to facilitate the majority wish. Common Sense Dictates.

RLB