Dems About to Pass the Filibuster Barrier, But Why Should Having 60 Votes Matter?

By Roy Ulrich, AlterNet. Posted May 5, 2009.

The Electoral College is provided for in the United States Constitution. The filibuster is not. In fact, the word doesn't appear in any of our founding documents. Its derivation is from the Spanish filibustero, meaning "pirate" or "freebooter." In the legislative context, a filibuster is the use of delaying tactics to block legislation. It is a mechanism available only in the Senate. As political scientist Jean Edward Smith has pointed out, "It is now possible for the senators representing 34 million people who live in the 21 least populous states - a little more than 11 percent of the nation's population - to nullify the wishes of the representatives of the remaining 88% of Americans."

The right to extended debate came about quite by accident. In 1789, the first U.S. Senate adopted rules allowing the body to "move the previous question," thereby ending debate and proceeding to a vote. In 1806, outgoing Vice President Aaron Burr argued that the previous question motion had been used so sparingly up to then that it should be eliminated. The Senate agreed, and so the potential for a filibuster came into being. Without a previous question motion, the Senate left itself with no way to limit debate short of gaining unanimous consent.

One of the Senate's earliest filibusters took place in 1841 when the Democratic minority tried to prevent the Senate taking up a bank bill authored by Henry Clay. After a long and protracted debate, Clay threatened to change the Senate rules to allow the majority to act. But Thomas Hart Benton and John C. Calhoun denounced the attempt by Clay to stifle debate. Clay ultimately conceded defeat.

It was not until 1917 that the Senate developed a way of shutting down dilatory tactics of an obstreperous minority. It is called the cloture rule. During the closing days of the session that year, a group of isolationist senators who opposed the entry of the United States into World War I filibustered a bill which would have allowed President Wilson to arm U.S. merchant ships. The President denounced them as a "little group of willful men" and called on the Senate to change its rules.

During the floor debate which followed, Senator Thomas J. Walsh (D-MT) opined that the Senate, like the House, had no rules to govern it at the start of each session and must adopt new rules pursuant to Article I, Section 5 of the Constitution. That section provides that the Senate has the power to "determine the Rules of its Proceedings." In an environment where nobody could predict what would happen next and both sides fearing the worst outcome, the parties got together to negotiate a cloture rule which was embodied in Rule XXII of the Standing Rules of the Senate. It provided that a 2/3 vote of all senators could cut off debate.

From the late 1920s to the late 1960s, the filibuster became associated almost entirely with the struggle over Civil Rights. Defeated during that time were anti-lynching bills, anti-poll tax bills, and anti-discrimination bills - all aimed to protect and provide equality to blacks in the south. In fact, the longest filibuster ever delivered was in opposition to the Civil Rights Act of 1959 by Strom Thurmond ((D-SC). It lasted 24 hours and 18 minutes and would have gone on longer had Thurmond's doctors not forced him to quit out of concern for kidney damage. In an attempt to end that debate, majority leader Lyndon Johnson (D-TX) brokered a compromise with Senator Richard Russell (D-GA) which resulted in the following two changes to Rule XXII:  

• Cloture would be possible on the vote of 2/3 of members present and voting; and
• The rules would include a statement that the rules of the Senate shall continue in force, at all times, except as amended by the Senate.

Most would agree in hindsight that Senator Russell got the better deal. By agreeing to the second point, Lyndon Johnson had in effect conceded the argument made by Senator Walsh 42 years earlier. In 1975, the filibuster issue was revived by post-Watergate Democrats who became frustrated by their seeming inability to enact meaningful campaign finance laws. Senator James Allen (D-AL) blocked these efforts with a series of filibusters. Senator Walter Mondale (D-MN) urged his colleagues to eliminate the cloture rule. He and other Democrats were able to break Senator Allen's filibuster with a little help from an unlikely source -- Vice President Nelson Rockefeller (who was presiding officer at the time). He sided with the Democrats, who had moved that Senator Allen was out of order. When Allen appealed the ruling to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were in the midst of debate about the "nuclear option," offered up a compromise. On March 7, 1975, the Senate voted 56-27 to amend Rule XXII to provide for cloture by 3/5 of all members from the previous 2/3 of members present and voting. Thus came about the 60 member threshold that exists to this day. The story took a turn for the worse when, in the early 1970s, Senate majority leader Mike Mansfield - intending to dilute the power of the minority - inadvertently made filibustering easier.

See more stories tagged with: democrats, republicans, senate, majority, filibuster, 60 votes

Roy Ulrich is a researcher at Demos, a New York based public policy and advocacy organization.

Liked this story? Get top stories in your inbox each week from Politics! Sign up now »