2009: Year of the Filibuster

By David Swanson

Trying to squeeze any sort of peace on earth out of our government in Washington has been a steep uphill climb for years. For the most part we no longer have representatives in Congress, because of the corruption of money, the weakness of the media, and the strength of parties. There are not 535 opinions on Capitol Hill on truly important matters, but 2. Our supposed representatives work for their party leaders, not for us. Luckily, one of the two parties claims to want to work for us.

When the Democrats were in the minority and out of the White House, they told us they wanted to work for us but needed to be in the majority. So, in 2006, we put them there. Then they told us that they really wished they could work for us but they needed bigger majorities and the White House. So, in 2008, we gave them those things, and largely deprived them of two key excuses for inaction. We took away the veto excuse and came very close to taking away the filibuster excuse, and -- in fact -- the filibuster excuse could be taken away completely if the Democrats didn't want to keep it around.

This is not to say that either excuse was ever sensible. The two most important things the 110th Congress refused to do (ceasing to fund illegal wars, and impeaching war criminals) did not require passing legislation, so filibusters and vetoes were not relevant. But the Democrats in Congress, and the Republicans, and the media, and the White House all pretended that wars could only be ended by legislation, so the excuses for not passing legislation loomed large. The veto excuse will be gone on January 20th. The filibuster excuse could be gone by January 6th if Senator Harry Reid wanted it gone.

The filibuster excuse works like this. Any 41 senators can vote No on "cloture", that is on bringing a bill to a vote, and that bill will never come to a vote, and anything the House of Representatives has done won't matter. Any of the other 59 senators, the 435 House members, the president, the vice president, television pundits, and newspaper reporters can blame the threat of filibuster for anything they fail to do.

Now, the Senate itself is and always has been and was intended to be an anti-democratic institution. It serves no purpose that is not or could not be more democratically accomplished by the House alone. The Senate should simply be eliminated by Constitutional Amendment. But the filibuster is the most anti-democratic tool of the Senate, and can be eliminated without touching the Constitution, which does not mention it. If you take 41 senators from the 21 smallest states, you can block any legislation with a group of multi-millionaires elected by 11.2 percent of the American public. That fact is a national disgrace that should be remedied as quickly as possible.

The filibuster was created by accident when the Senate eliminated a seemingly redundant practice of voting on whether to vote. Senators then discovered, after a half-century of surviving just fine without the filibuster, that they could block votes by talking forever. In 1917 the Senate created a rule allowing a vote by two-thirds of those voting, to end a filibuster. In 1949 they changed the rule to require two-thirds of the entire Senate membership. In 1959 they changed it back. And in 1975 they changed the rule to allow three-fifths of the Senators sworn into office to end a filibuster and force a vote. Filibustering no longer requires giving long speeches. It only requires threatening to do so. The use of such threats has exploded over the past 10 years, dominating the decision-making process of our government and effectively eliminating the possibility of truly populist or progressive legislation emerging from Congress. This has happened at the same time that the forces of money, media, and party have led the Democrats in both houses to view the filibuster excuse as highly desirable, rather than as an impediment.

Were the Democrats serious about eliminating the filibuster excuse, they would either take every step possible to get 60 senators into their caucus, or they would change the rule requiring 60 senators for cloture. Possible steps to reach that magic number of 60 would include ensuring the closest thing possible at this point to honest and verifiable outcomes in the Minnesota senate election and every other senate election of this past November, immediately seating replacement senators for Obama, Biden, and Democrats appointed and confirmed for other offices, appointing Republican senators from states with Democratic governors to key jobs in the Obama administration and immediately seating their replacements, and providing Washington, D.C., with a House member and two senators (this last approach changing the magic number to 61 and potentially providing the 60th and 61st Democrats). Simpler and more certain would be simply changing the rule, specifically Senate Rule 22, which reads in part:

"'Is it the sense of the Senate that the debate shall be brought to a close?' And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."

This would seem to suggest that it takes 60 senators to block a filibuster and 66 senators (if 100 are present, otherwise fewer) to end the power of 60 senators to block filibusters. But that's not the whole story. William Greider recently explained:

"In 1975 the filibuster issue was revived by post-Watergate Democrats frustrated in their efforts to enact popular reform legislation like campaign finance laws. Senator James Allen of Alabama, the most conservative Democrat in the Senate and a skillful parliamentary player, blocked them with a series of filibusters. Liberals were fed up with his delaying tactics. Senator Walter Mondale pushed a campaign to reduce the threshold from sixty-seven votes to a simple majority of fifty-one. In a parliamentary sleight of hand, the liberals broke Allen's filibuster by a majority vote, thus evading the sixty-seven-vote rule. (Senate rules say you can't change the rules without a cloture vote, but the Constitution says the Senate sets its own rules. As a practical matter, that means the majority can prevail whenever it decides to force the issue.) In 1975 the presiding officer during the debate, Vice President Rockefeller, first ruled with the liberals on a motion to declare Senator Allen out of order. When Allen appealed the "ruling of the chair" to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were losing the precedent, offered a compromise. Henceforth, the cloture rule would require only sixty votes to stop a filibuster."

If Vice President Biden's assistance appears needed for this, it can wait until January 21st. If it waits longer than that, the credibility of the filibuster excuse will collapse, because the Democrats will be publicly admitting that they prefer to keep that excuse around.

If the Minnesota election remains undecided, cloture may require one fewer vote under current rules, but the Democrats will have one fewer senator. The outcome of that race will only be decisive if the Democrats refuse to change the filibuster rule and pursue other attempts to achieve a caucus able to vote for cloture.

If, through one means or another, the Democrats eliminate the filibuster excuse, our job will be to organize and agitate immediately to take full advantage of this rare opportunity for actual representative government. Greider proposes reducing to 55 percent of the Senate the number of senators needed for cloture. I propose reducing it to 50 percent plus one. Either way, nobody is proposing that a minority be empowered to decide anything, only that a majority finally be permitted to (even to the extent allowed by an anti-democratic body like the U.S. Senate in which both Wyoming and California have the same number of senators). Should that happen, all I can say to Wall Street and the military industrial complex is: get ready to be shocked and awed!

If the Democrats choose to keep the filibuster excuse around, our job will be to overwhelm them and the media with our refusal to believe it. Yes, we'll also want to lobby for peace, justice, jobs, green energy, and health care. But we'll never get them unless we insist on pressuring the Senate on this seemingly arcane little matter of passing bills, or what we might call a campaign for "No taxation without representation."