put up or (don’t) shut up

25 Feb

For the most part, I got a pretty good public school education. The breadth of knowledge I left high school with was sufficient to prepare me for more in-depth study at the university level, and equipped me well enough to function as a base-level responsible adult in American public life.

I can, however, point to one big hole in my education. As generally useful as the rest of Mr. Ely’s “Civics. What is Civics? Civics is the study of government and citizenship” class was*, he completely missed the boat on explaining the concept of the Senate filibuster in the modern (post 1975) context; a flaw which evidence collected since then indicates is a common one, and one which prevents many Americans from properly understanding exactly how their government works.

While the historical idea of the dramatic endurance tactic of talking a bill to death, including the example reading from the phone book on the Senate floor was covered (I think we even watched a few minutes of Mr. Smith Goes to Washington to illustrate the point), The modern practice, which differs significantly, was not.

(great swaths of the next couple of paragraphs are summarized from this article, which describes things beautifully)

This is going to get long, so I’m putting in a jump. Here comes the science social studies:

The filibuster isn’t a constitutionally mandated thing; it’s part of the adopted rules of the Senate (the constitution grants the Congress the ability to determine it’s own rules and practices). Rules changed numerous times, however, the cloture rule is the one that concerns the Senate’s ability to end debate on a bill. the “Cloture rule” was enacted in 1917, which allowed a two-thirds majority vote to end debate (before that point, debate could, within certain bounds, continue indefinitely). Still, 2/3rd is a hard majority to obtain, and since 1872, the senate rules were such that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending matter,” Senators could ramble on to prevent a vote as long as the could remain conscious and speaking.

This changed in 1975, allowing a cloture vote with a three-fifths majority (60 of 100), and allowed the filibuster to be “invisible” – that is, 41 or more senators state that they intend to filibuster, and the senate simply take it as rote that they would, and the issue would be set aside. This is the current model, the so-called procedural filibuster.

In many ways, this is a useful rule, because it allows the Senate to get on with other business when it’s clear that something won’t pass – it tends to keep things moving at a less glacial rate in the Senate, and it gives the minority a powerful tool.

It also, however, feels like a bit of a cheat; in many cases, I personally like the necessity of the minority to have to back up their threat with action. If somebody’s willing to engage in a dramatic test of endurance to block a vote on a given issue, to me, it says that they’ve got serious personal investment in the subject in the way that “just take it as assumed that we’re going to lie here in front of the bulldozer, but really we’ll pop down to the pub for a pint” doesn’t.

Now, I first learned of the filibuster in middle school in the mid-eighties, and took civics my freshman year of high school, in 1989. At that point, the procedural filibuster had been a standing rule for a decade and a half; you’d think it would be an important thing to mention.

As I said previously, this is a widespread hole in many people’s education. Many modern dramatizations of US Government still make use of the traditional pre-75 filibuster, including The West Wing and it’s quickly axed spiritual spin-off Mister Sterling. To be fair, these shows take place in an alternate universe from ours with certain obvious differences (presidential election years are off by two, for example), but still adhere to the dramatic “Mr. Smith” model rather than modern reality. While this serves the needs of the drama, it further muddies popular understanding of this particular element of the legislative branch.

The idea of eliminating the filibuster has come up a couple of times recently; in 2005, the Republican majority threatened the “nuclear option” (essentially declaring the filibuster unconstitutional and merely requiring a simple majority vote to end debate) to prevent the minority from blocking approval of President Bush’s judicial nominees. There are now rumblings about Democrats using a similar tactic (reconciliation – not the same thing, despite what Hannity says) to get bits of health care passed around a threatened filibuster.

As for the filibuster itself, I’m actually a fan; even if it works against something I’d like to see passed, it’s one of those things in our system of government that prevents the minority being unjustly run over by the majority, and generally, that’s a good thing. However, I don’t really like the “procedural filibuster”; in my opinion, if the minority is so strongly opposed to a bill that has the support of a simple majority, I want to see them really demonstrate their intense opposition with a real Jimmy Stewart style filibuster. If a Senator’s willing to go to such lengths to defend their position, then it’s likely safe to say that the issue requires further consideration. The current procedural filibuster rules simply don’t confer that kind of weight to such opposition.

I’d personally love to see a rules change that does away with this procedural business and require the minority opposition to follow through on the filibuster threat if the feel strongly enough to make it.

To tie this back to the current business in Congress about health care. According to polling data, a majority of Americans support health care reform in general and a public health care option in particular. The expressed positions of a significant minority of of legislators in congress appear to be against reform – essentially the entire republican caucus, and a handful of “blue dog” democrats, enough that wrangling the 60 votes necessary to end debate and bypass the proceedural filibuster and vote on any health care bill would be difficult, but likely not enough to keep a bill from passing with a simple majority vote.

I don’t have a problem with their opposition (even if I don’t agree with it); however, I’d like to see the minority really own their opposition through a traditional filibuster. If they’re sincere in their opposition, they shouldn’t have any problem talking about their justifications for opposing a bill that would likely improve life for millions of Americans, and hopefully convincing their constituents and a few of their fellow Senators that their position has merit. However, if their opposition is merely obstruction in order to make the current president appear ineffectual, that would come through as well if they’re forced to get up there and actually talk the bill to death instead of just having it taken as assumed that they would.

I’d say the same thing if I were with the minority on the current issue; if it’s that important to oppose something from the minority position, break out your position papers and persuasion skills, take the floor, and own it, at the very least, it’ll demonstrate to the American people your conviction on the issue.


* Including the infamous “how a bill becomes a law in seventeen steps” mimeograph, and the meandering explanation about how others might describe the process in fourteen, fifteen, sixteen, or eighteen, nineteen, or twenty steps, but that Mr. Ely believed that seventeen steps was just the right number. It’s strange how much that class left an impression on me; perhaps it’s because he was such an eccentric character, and used pretty much exactly the same script every year, and so many of us could recite much of it from memory after exposure.


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