Hats off to Harry

by John Lawrence

Harry Reid may be a long-retired boxer, but on Thursday, he played more the referee – laying down the rules to the long battling Senate factions.   After years of delay, compromise and kvetching, Reid did what he had long threatened, and altered the filibuster rules to allow a simple majority to approve most presidential nominations.  Good for him!

Of course, we know the justifications for continuing to coddle the Republican obstructionists – Democrats will live to regret this alteration of the sacrosanct Senate “rules.”  Sen. Charles Grassley offered just such a warning before yesterday’s vote, promising, “When we have the majority … we [will] put more people like Scalia on the court.”  Uh, isn’t that the point, Senator?  You did put Scalia on the Court.

Whenever there have been discussions of limiting the filibuster, the old canards are dragged out to try to make reformers feel guilty about altering a solemn Senate tradition.  The tradition is over 200 years old, we are reminded, and has served the country well by preventing hasty enactment of half-baked nostrums cooked up by the constituent-driven House.  But for the right to unlimited speech, we are told, our system of government would have foundered generations ago.

Nonsense.  A disturbingly high number of Americans think the filibuster is protected by the Constitution, or was sanctified by Jimmy Stewart (which is almost as worthy).  But the filibuster was invented in the nineteenth century and was actually used more frequently in the House until Henry Clay got fed up with the histrionics and instituted tougher Previous Question (PQ) rules to limit debate in 1811.  Sen. Lamar Alexander (R-TN), a student of congressional history, decried the adoption of the revised rule as “the most dangerous restructuring of Senate rules since Thomas Jefferson wrote them.”  (Actually, Senator, Jefferson had recommended adoption of a rule to discourage  long-winded and irrelevant speeches.)

The Senate, not surprisingly, went in the opposite direction, dropping its PQ rules in 1806 and opening the way for two centuries of blowhards to read recipes, magazine articles and otherwise delay the legislative process.  Despite the shock and dismay with which Reid’s reform was greeted as an unprecedented assault on the sacred right of bloviating, changes in the filibuster rule are not all that uncommon, and have occurred in 1949, 1959, 1975, 1979, 1986 and last year, and I’ve probably missed a few.

Senators often assert their tradition of unrestricted speech is part of a strategy to secure changes to a legislative vehicle.  Sen. William Plumer (F-NH) knew better, acknowledging in 1806 that “speeches in the Senate in most cases have very little influence upon the vote.”  More than a century later, Sen. Carter Glass (D-VA) agreed, “I have never known a speech to change a vote.”  Perhaps the most honest explanation of Senate loquaciousness was the admission of  Sen. William Mason (R-IL) who confessed in 1903, “I love to hear the sound of my own voice.”  As Professor Sarah Binder of George Washington University, a renowned expert on the filibuster, has shown, the real motivation behind the use of the filibuster has little to do with high principle or the sanctity of the Senate: it is used to further one’s political agenda.

Of course, senators through the eras have defended the filibuster for more substantive reasons.  Certainly, the practice was used often by Southern segregationists to block consideration of civil rights legislation, although it was rarely described in such blatant terms.  “I ask for the right of unlimited debate in the defense of my people,” declared Sen. Russell Long (D-LA), “in defense of their customs, traditions and society.” He wasn’t talking about defending the right to eat etouffee.  Nor was Sen. Lyndon B. Johnson (D-TX) who, in his maiden speech to the Senate, waxed eloquent about the body’s “freedom of unlimited debate” which he would unleash to defend the South from “the tyranny of momentary majorities.” 

That’s all well and good, but as Harrah Arendt noted (and most halfway unbiased observers would agree), “a minority of totalitarians can use the instruments of democratic government to undermine democracy itself.”   And so they have, which is why Reid had to act to end the “unprecedented, unbelievable obstruction,” as he put it yesterday.

The problem is, in some ways, less the filibuster than the radical expansion of its use.  Filibustering was a rare phenomena in the 19th century, and as recently as the 20 years following World War II, there were fewer than a half dozen.  In his tenure as Majority Leader of the Senate, LBJ faced one cloture vote to end a filibuster.

As with so many other aspects of American politics, the use the filibuster substantially expanded with the rise in partisanship in the 1970s, and has continued to grow as has the enmity between the parties.  Still in the 24-year period 1970-1994, there were only 191 cases by Democrats and Republicans alike.  In the 1990s, Neil McNeil and Richard Baker note in The American Senate, Sen. Robert Dole “adopted the filibuster as his party’s weapon of choice. This was new. Never before had a party leader adopted the filibuster as an instrument of overall party policy. Filibusters had always been the tool of party minorities, decade after decade, but not this way. Dole’s filibusters came on measure after measure.”

Democrats unleashed their own fusillade of filibusters in the early 2000s, eventually exceeding 100 before regaining Senate control in 2007.  And then, things got really out of control, particularly after the election of President Obama signaled for Republicans that the old constraints on obstruction, vilification and denigration were off.  As the New York Times noted, half of all filibusters against presidential nominations have occurred since President Obama took office.  Twenty district court nominees have been filibustered under Obama, compared to just 3 before he took office.  Little wonder that Sen. Reid has repeatedly chastised Sen. McConnell at congressional leadership meetings at the White House for using the filibuster over 400 times to delay legislation high-level appointments of competent individuals. 

Predictably, Republicans are now warning that they will exploit the new majority vote rule when their turn in the majority comes, as it eventually will.  If and when it does, Democrats will doubtless chafe under the Republicans’ strong-arm tactics.  But let’s not pretend there was a better outcome here than Reid chose.  It is all well and good for critics like the Washington Post editorial board to intone that “a filibuster should be rarely invoked,” but the Post offered no solution for discouraging chronic filibustering by Republicans.   So what is the alternative: grin and bear it?

Some bemoan that ramping up a partisan battle in the Senate will jeopardize the progress made on bills like farm reauthorization and immigration reform.  Unlikely.  Republicans didn’t let those bills pass because they wanted to be buddies with Democrats.  They passed a farm bill for the same reason Willie Sutton robbed banks – that’s where the money is; and they passed an immigration bill because Republican senators, unlike their clueless House colleagues, have faint hopes of again becoming a nationally competitive party.  When they want to gum up the works, of course they will attribute it to the Reid power grab, but the likelihood is they would have done it anyway.  As former Sen. Byron Dorgan noted, “the Senate is 100% human break pads.”

I would not be all that surprised to see the Senate revisit the issue of the filibuster in the next few weeks, after passions have cooled and interest revives in finding a compromise.  Such accommodation, after all, is what the Senate intuitively seeks.  If that happens, Leader Reid will have been even more justified in taking the step he did to end chronic obstructionism by the minority.  In the meantime, hats off to Harry Reid and Senate Democrats who had the fortitude to declare what most Americans believe: enough is enough.