As is often the case with feisty political battles, angry rhetoric obscures many of the facts regarding the so-called “nuclear option” invoked by the United States Senate.
Let there be no doubt: The fact that so many Democrats, including President Obama and Majority Leader Harry Reid, so dramatically shifted position on changing the filibuster rules is very difficult — if not impossible — to defend. But this isn’t about the hypocrisy of individuals; it is about democracy. The real issue shouldn’t be what Obama, or Reid — or the Republicans, for that matter — said in the past, but whether the filibuster is appropriate in the first place.
Contrary to what some may want to assume, the right to filibuster — which means that a senator has the right to keep on talking, thus preventing the majority from voting — is not enshrined in the U.S. Constitution. The Congressional Record reports verbatim all speeches given in the House and Senate since 1873, but there is convincing historical evidence that the first filibusters began as far back as the late 1830s. For the first few decades of its existence, the young Senate managed very well without this tool.
Perhaps the most convincing argument as to why the filibuster has no place in a true democracy was made when the first major limitation, known as cloture, was placed on the filibuster in 1917.
Based on clear evidence that Germany was a very real menace to American ships, then-President Woodrow Wilson proposed the Armed Ship Bill, which would arm American merchant ships and enable them to defend themselves in the event of German attack.
At that time, Wilson still hoped to keep America out of the “Great War,” and the bill was wholly a defensive one.
The bill passed the House with overwhelming support and had strong support within the Senate, but a group of 11 senators, led by Senator Robert La Follette (R-Wisc.), claimed that the bill would cause the United States to become entangled in the conflict, and mounted a successful filibuster.
The American public was infuriated and demanded action.
In a statement that is just as applicable today as it was in 1917, President Wilson declared that the “Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.”
Citing the example of the Armed Ship Bill among other notable filibusters of the 64th Congress, Wilson demanded that the Senate enact filibuster reform: “The remedy? There is but one remedy. The only remedy is that the rules of the Senate should be so altered that it can act…and save the country from disaster.”
Senator Thomas J. Walsh (D-Mont.) launched an effort to change the rules. “[T]o maintain that a rule has any virtue under which one man may, by his physical prowess alone, defeat a vote is to invite calamity unspeakable and expose the Senate to the well-deserved contempt of mankind,” he said.
Thanks to the efforts of Walsh, the rules were changed to allow two-thirds of the Senate to end the filibuster.
In 1975, the rules were changed once again, to allow for three-fifths of the Senate (60 votes by then) to end debate and vote. That made things better, but still allowed for minority rule, rather than majority rule. While the need for a super-majority in such matters as impeachment or the overriding of a presidential veto makes sense, there is no logical explanation why 41 out of 100 senators should be able to block confirmation of nominees.
Filibusters make for great news stories. A speech by Senator Strom Thurmond (D-SC), who was trying to prevent passage of the Civil Rights Act, lasted 24 hours and 18 minutes and would have lasted longer had his doctors not forced him to conclude (out of concern for kidney damage). But they have no place in civilized society. The very concept of a filibuster — a remnant of ancient Rome — smacks of dictatorship and is anathema to democracy.
It is unfortunate that the confirmation of Supreme Court justices and the passage of legislation weren’t included in the rules change. It is high time to relegate the entire notion of a filibuster to the dustbin of history.