Abuse of the Filibuster: Republicans Play Dirty 'Block and Blame' Game

By Christopher Moraff, The Philadelphia Tribune. Posted June 23, 2008.

With one of the most contentious presidential primary battles in history finally behind us, media attention is beginning to focus on a fight of a different kind -- that for control of the Senate in 2009.

As things stand the Democrats maintain a paper-thin majority of 51 votes, thanks to the Senate's two Independents who tend to vote democrat; but that slim advantage so far hasn't been enough for them to assert control over the chamber.

With 35 Senate seats up for grabs in November, the majority is hoping to pick up the extra votes it needs for a 60-vote "supermajority" and with it the mandate to finally start making progress on platform issues like Medicare drug reform and a timetable for withdrawal from Iraq.

For anyone who's ever taken a Civics class, the notion that it takes 60 votes to conduct business in the Senate may come as a surprise; after all, in the Senate all that's required to pass legislation is a simple majority, right?

In theory, the answer is yes; but in practice, Senate protocol incorporates a number of procedural devices designed to give the minority some leverage; chief among these is the filibuster.

Senate Democrats complain that for the past year and a half, the Republican leadership has been waging a dedicated campaign of obstruction, using the threat of filibuster to block the bulk of the Democrats' 2006 election initiatives, and in the process subverting the will of the American electorate.

In the past two weeks alone, Senate Republicans have blocked votes on four vital measures -- at least two of which had wide public support.

On June 6, Senate Republicans used the threat of filibuster to block the Climate Security Act, which would have required major reductions in greenhouse gases. Days later they used the same tactic to kill a Democratic measure that would have imposed a 25 percent tax on "windfall" profits of the five largest U.S. oil companies, which together made $36 billion during the first three months of the year.

And last Thursday, June 12, the minority filibustered a bill to delay pay cuts to Medicare physicians, which the bill's sponsor, Max Baucus, D-Mont., said will adversely affect the quality of senior health care.

Nearly as old as the Senate itself, the filibuster is a procedure whereby a disaffected minority can stall or even preempt passage of legislation by engaging in extended debate. Until 1917, it was virtually impossible to disrupt a filibuster once it got started. In that year, the Senate adopted Rule 22 -- the cloture rule -- which is currently the only formal procedure for breaking a Senate filibuster. Under cloture, the Senate may limit consideration of a pending matter to 30 additional hours of debate, essentially forcing a vote. In 1975 then-Senate Majority Leader Mike Mansfield, D-Mont., spearheaded an effort to lower the threshold needed to invoke cloture to 60 votes from the previously required 2/3 majority.

"We cannot allow a minority to grab the Senate by the throat and hold it there," he said at the time. Yet more than three decades later, Democrats and their supporters say that's exactly what's happening.

"I think they've made a concerted effort to obstruct and block and impede any progress on basic issues," said Sen. Bob Casey, D-Penn., commenting on Republican obstructionism. "So, they've made a concerted effort after losing the majority to say well, if we've lost the majority we're going to assert ourselves by blocking the Democrats from getting anything done."

It's not a tactic Republicans have tried to hide. Just over one year ago, in April 2007, then-Minority Whip Trent Lott, R-Miss., outlined the nature of the policy. "The strategy of being obstructionist can work or fail ... and so far it's working for us," said Lott, in an oft-quoted comment in the Capitol Hill newspaper Roll Call.

Democrats hope that in November they'll pick up the seats necessary to put an end to that strategy, giving them the first filibuster-proof majority in nearly 30 years. But analysts say that's a long shot.

According to Larry Sabato, professor of political science at the University of Virginia, of the 35 open seats -- 22 Republican, 13 Democrat -- Democrats are likely to win 16, with another two, New Mexico and Louisiana, toss ups.

"It is highly unlikely that Democrats will get the 60 Senate votes necessary to shut off filibusters," said Sabato. "My guess is that they're going to pick up three to five [Republican] seats putting them somewhere around 54, 55, or 56, but it's going to be awfully tough for them to get up to the 60 votes that they'll need [to secure cloture votes]. That said it's a long way from November, so anything is possible."

For decades, the filibuster has evoked both fascination and angst, looming in the background as the proverbial "wrench" in the works of the legislature. Even the name implies an element of disrepute, literally meaning "freebooter," or pirate. As a tactic it can be either a blessing or a curse depending upon which side of the aisle you find yourself on. And like much else in partisan politics, there is little consistency of perspective. The same people that rail against its use one year are often found defending it the next.

Back in 2005, when the Democratic minority was using threats of filibuster to block conservative Bush judicial appointees, Orin Hatch, R-Utah, called the strategy "unprecedented, unfair, dangerous, partisan, and unconstitutional." Former Senate Majority Leader Bill Frist, R-Tenn., referred to filibusters as "procedural gimmicks" and threatened to use the "nuclear option" to eliminate filibusters against judicial nominees.

Today, actual continuous floor speeches are no longer required, although the Senate Majority Leader may require an actual traditional filibuster if he or she so chooses. More common is the so-called "gentleman's filibuster" or "silent filibuster" whereby senators simply register their objections with their party leader. Critics say the ease with which filibusters can now be engaged (the objecting Senator does not even need to be present) has led to their abuse.

But governance experts note this isn't the first time, or the last, the majority party has cried foul over obstruction.

"The need for 60 votes, it permeates everything Senators do," said Sarah Binder, a senior fellow in Governance Studies at the Brookings Institute and author of the book Politics or Principle: Filibustering in the U.S. Senate. "We might see a ratcheting up of the 60-vote pressure last year, but that's not new in the Senate. Harry Reid is not the first leader, majority leader, to bemoan minority obstruction."

But even a cursory glance at the proceedings of the 110th Senate shows something is clearly different this time. Republican leaders are evoking filibusters at a torrid pace, seemingly intent on blocking nearly every piece of legislation that comes across their desks, even measures with wide Republican support.

During the Legislature's first session, which ended in January, the majority was compelled to invoke 78 cloture votes, an average of more than one a week. And things seem to be repeating themselves in the second session, with 44 cloture motions as of June 13, for a total of 116 so far in the 110th Congress.

By contrast, the previous record was 61 cloture votes during the entire 107th Congress of 2001-2002. Republicans are on track to triple that total by the time the second session closes next year.

Sen. Casey blames this on a small nucleus of Party stalwarts who he suggests are subverting the will of even their own constituencies.

"Even large segments of the Republican electorate want progress," said Casey. "These issues [health care, veterans benefits] aren't Democratic issues they're issues that a lot of families across the board are concerned about ... This has gotten to the point where even when some Republicans are trying to make progress, the Republican leadership blows up the bridge."

Among that bills that passed the House by wide margins last year but failed under Republican filibuster threat was legislation to simplify the creation of employee unions, a bill to allow Medicare to negotiate prescription drug prices, and a bill that would give employees more leverage in filing discrimination suits against their employers.

Senate proposals that failed to garner the 60 votes needed to break Republican filibuster included a bill to provide longer leave to soldiers returning from Iraq, a comprehensive immigration reform package, and an amendment to restore Habeas Corpus to detainees in U.S. custody that was proposed by Pennsylvania Republican Sen. Arlen Specter, and blocked by his own party.

While unavailable for comment, Specter's office forwarded text of a recent floor speech in which he laments the absence of any meaningful debate in today's Senate.

"The cost of a filibuster today is very cheap," said Specter. "All you have to do is say: I am going to filibuster. Then there is a cloture vote, and 60 votes are not obtained, and the issue goes away. That is not the way the Senate has traditionally functioned."

But Specter says the Democrats are to blame for not forcing a debate, and for using their own obstructionist tactic known as "filling the amendment tree," which prevents the minority from placing amendments on bills.

Many of the measures blocked by the Republicans faced likely veto by president Bush, but critics of the obstruction say that's not the point. Congress watchers like Eric Lotke of the Campaign for America's Future say by preventing the Senate from making any progress, Republican strategists are looking ahead to November when they hope to capitalize on the public's perception of a "do-nothing" majority.

"It's what we call block and blame," said Lotke. "It's like mugging the delivery person and then blaming the mail for being late. Eventually the Congress will start to be talked about and we'll get these 'do-nothing' charges and attacks."

Already the strategy seems to be working. Despite the rout by Democrats in the 2006 mid-term elections, public approval of Congress has plummeted. In May, a Gallup poll found the Legislature's approval rating had sunk to a record low of 18 percent -- below even the President's approval rating.

"I guess in their minds, this is all about politics not what's best for the country. In their minds they get to block and then complain that nothing is getting done," said Sen. Casey.

Mr. Smith has left the building

For those old enough to remember, the word 'filibuster' conjures an image of a young Jimmy Stewart, playing the senator Jefferson Smith in the 1939 Frank Capra film Mr. Smith Goes to Washington. In the film's climatic resolution, Sen. Smith conducts a blazing hours long filibuster to stop a corrupt colleague from completing an illegal land-grab in his home state.

A radio commentator in the movie invites his listeners to witness, "the most unusual and spectacular thing in the Senate annals ... the American privilege of free speech in its most dramatic form ... democracy in action."

And so it was. Filibusters were indeed once dramatic events, equal parts theater and politics.

In 1935, Sen. Huey Long, D-La., conducted one of the most memorable filibusters in Senate history that included his recipes for fried oysters and turnip-green pot liquor; and just about everyone has heard of Sen. Strom Thurmond's (then D-S.C.) marathon 24 hour and 18 minute attempt to halt the Civil Rights Act of 1957 (it's rumored a Thurmond aide stood by with a bucket should the Senator feel the need to relieve himself).

As recently as 1992, Sen. Alfonse D'Amato, R-N.Y., staged one of the last real filibusters with a 15-hour effort against a bill to move a typewriter factory to Mexico that featured rousing renditions of "Deep in the Heart of Texas" and "South of the Border."

But in practice those days are far from over. Lotke argues that the transition to a "silent filibuster" and immediate cloture robs the public of an understanding of exactly what's going on.

"It's always reported as the Democrats fell short, not the Republicans obstructed," he said. In 2007 the Campaign for America's Future distributed a petition asking Senate Majority Leader Harry Reid, D-Nev., to compel filibustering Senators to engage in actual floor speeches.

"We were hoping that people would start to see what's going on and that it's extraordinary, not business as usual in Washington," he said. "We got lots of signatures and we gave it to him and he did what he thought was tactically best and that's to leave it be."

Lotke's is an argument that's been made before. Back in 1996, longtime Senate staffer Bill Dauster wrote perhaps the most concise criticism of the silent filibuster.

"Senators should be compelled once more to stand up, literally, for their convictions," he wrote. "Organized minorities certainly deserve a forum for objections, but the process should not be so simple it invites abuse."

Yet Sen. Casey thinks this might not have the intended effect.

"The idea that every time they block the best thing for the Democrats to do is to begin a series of hours and hours of back to back speeches, I think that sounds a lot easier than it is," Casey said. "But at the end of the road even though you might highlight what they're doing, you still may not be successful and it may prevent you from doing other things that you want to do in the Senate -- so it's a judgment call."

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Christopher Moraff is a writer, journalist and photographer and a frequent contributor to In These Times, The American Prospect Online and Common Sense Magazine. He currently serves as a features correspondent for The Philadelphia Tribune and is associate editor of the finance magazine the Monitor, where he specializes in covering corporate fraud. He lives and works in Philadelphia.

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