Re: UNITRD STATES: Lee Hamiilton, HOW CONGRESS WORKS: The filibuster



At Indiana University, Lee Hamilton gave an interesting talk on his new bool published by that university's press, How Congress Works, and Why You should Care About it, With his decades of service in Congress, he is amply qualified to write such a book,  He stressed two themes: the tyranny of the majority and the need for a consensus in Congress.  I had just had a conversation with a distinguished colleague, a hard-line Democrat who hates the Republicans. Somehow, the filibuster came up in our discussion.  This peculiarly American institution has been satirized in books and films like "Mr. Smith Goes to Washington". Here is a definition:"A Filibuster is the term used for an extended debate in the Senate which has the effect of preventing a vote. Senate rules contain no motion to force a vote. A vote occurs only once debate ends. The term comes from the early 19th century Spanish and Portuguese pirates, "filibusteros", who held ships hostage for ransom".  So the very term is derogatory   When I expressed contempt for the practice, my colleague became irate and said that it was the only way to prevent the Republicans riding roughshod over the Democrats.  It did not occur to him that the filibuster blocks what is in theory the will of the people. I am sure that, if the Democratic Party were in power and the Republicans were using a filibuster, he would accuse it of blocking the will of the people.

Because of abuse of the filibuster, cloture was introduced, as described in the history of the US Senate: Using the filibuster to delay debate or block legislation has a long history. In the United States, the term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill. In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it was necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued since senators believed any member should have the right to speak as long as necessary.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate's right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as "cloture."

The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.

RH: News reports suggest that the Democrats are preparing to use filibusters to block Republication legislation.   My friend was following the party line. The filibuster goes back to the first days of the republic.  Where did it come from?  There is nothing like it in British usage. I believe it is a strictly American institution, although I believe it has no constitutional basis. It blocks reaching a consensus, which Lee Hamilton views as supremely necessary.  He did not mention the filibuster or present plans to use it. I wonder what he and John Brademas think about it.

Randy Black puts the filibuster in historical perspective: Filibuster: The use of the term for “a politically delaying tactic such as a long irrelevant speech or several such speeches used by politicians to delay or prevent the passage of some undesired legislation” has now virtually obliterated its former semantic equivalence to freebooter which originated in the USA in the 1880’s. A freebooter is defined as “anyone who lives by plundering others, especially a pirate.”
·  In the middle of the nineteenth century bands of adventurers organized in the United States were in Central America and the West Indies, stirring up revolutions.
·  Such an adventurer came to be known in English as a filibuster, from the Spanish filibustero.
·  The word had originated in Dutch, as vrijbuiter.
·  Its travels on the way from Dutch to Spanish are uncertain, but it is likely that the Spanish borrowed the word from the French, flibustier, fribustier, who apparently got it from the English flee-booter, freebooter.
·  Early in the nineteenth century, John Randolph, a senator from Virginia, got into the habit of making long and irrelevant speeches on the floor of the Senate.
·  The Senate got so fed up with such tactics that it voted to give the presiding officer explicit power to deal with such problems.
·  In 1872, however, Vice President Schuyler Colfax struck a blow against the expeditious handling of Senate business with his ruling 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 issue.”
·  Within a few years the use of delaying tactics in the Senate was rife.
·  Senators practicing such tactics were compared with military adventurers, filibusterers, who wreaked havoc in other countries, and were said to be filibustering.
·  Over the years the word came to mean “obstruction of legislation in the U.S. Senate by prolonged speechmaking,” after a congressman described one such obstruction as “filibustering against the U.S.”
·  Now the word is back in English from its former piratical meaning, but this time with a new form and meaning of disruption and interference. See
The Barnhart Dictionary of Etymology edited by Robert K. Barnhart (New York: The H.W. Wilson, 1988).
Dictionary of Word Origins by John Ayto (New York: Arcade Publishing, 1990).
Word and Phrase Origins by Robert Hendrickson (New York: Facts On File, Inc., 1997).
Source: http://www.wordphiles.info/image-word-unit1/word-image8.html
 
RH: "remarks which the Senator considers pertinent to the pending issue"? Senators resorted  to reading the Bible to keep a filibuster going.

Concerning the filibuster, Randy Black writes: Under Parnell, Irish Nationalists tied up the  House of Commons for 26 hours in July, 1877. I have no idea as to whether or not it {the filibuster]is still in use there.
 
The last time the rule was changed (1975) in the US Congress was action by the Democrats to make the change due to Republican filibustering. In 1975, Senators changed the filibuster requirement to stop such a paralysis of the Senate from 67 votes to 60, after concluding that it only takes a simple majority of Senators to change the rules governing their proceedings. As Senate Majority Leader, Mike Mansfield (D-Montana) said at the time: “We cannot allow a minority” of the senators (Republicans) “ to grab the Senate by the throat and hold it there.” Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is “plainly unconstitutional.”
 
Sources: http://www.wordsources.info/words-mod-filibuster.html

RH: As I said, the party in power hates the filibuster, the opposition hangs on to it like a drowning man. I believe the word filibuster is strictly American,  It is not used in Canada. After the 1877 episode in the British parliament, I assume some time limits were imposed.  Can someone familiar with the British system enlighten us?
 
Randy Black writes: Notwithstanding his openly declared voting intentions, I am surprised that a person of Mr. Whealey’s experience, intellect and integrity takes such a one-sided and inflexible position.
 
Before I address Mr. Whealey’s position, I want to offer a lesson in recent Democratic Party history on the topic of Senate changes in filibuster rules: The last time that any Senator tried to get filibusters eliminated completely was in 1995 and guess who introduced the rule change? Senior Democrats, including Sens. Lieberman and Tom Harkin (D., Iowa). When it came to a vote, 19 Democrats, including leading blue-state senators such as Ted Kennedy and John Kerry, supported the measure. Unlike the attempts by Democrats to end all filibusters, the effort by Senate Republicans is limited to the judicial confirmation process.
 
Moving on, Mr. Whealey states that from 1930 to 1980, the Republicans were a minority in Congress. I offer that despite their minority position, the Republican Party survived and in some cases, thrived over that era, despite the filibuster rules of the day.
 
Today, the shoe is on the other foot, so to speak and the Democrats are the minority party. Is Mr. Whealey saying that the Democrats and their causes are so inherently weak that they cannot survive the long haul without some artificial support from a source that Mr. Whealey does not name?
 
Contrary to Mr. Whealey’s assertion, the Republicans do not control the metropolitan media: in fact, the opposite is clearly the case. Additionally, Mr. Whealey claims that voters have never been so irrational as today. I might offer that one can make a case that the voters were far more irrational in the past then they supported such failed Presidencies as that of Jimmy Carter, Richard Nixon and Lyndon Johnson.
 
Regarding the discussed changes of the Senate filibuster rules, the last time they were actually changed, who do you think was the culprit, Mr. Whealey? The Republicans?
 
Hardly. They were changed by the Democrats so that Democratic legislation would be passed over the objection of the Republicans and a few Democratic supporters. Remember a democrat named Mike Hatfield? Remember 1975? It used to take 67 votes to cut off a filibuster. The Democrats successfully lowered the number to 60 in the 70s.
 
Mr. Whealey bemoans the lack of liberals in the courts. I might remind him that Republican Presidents nominated many of the liberals previously on or still on the US Supreme Court including Earl Warren - architect of modern liberal jurisprudence (Eisenhower), Sandra Day O’Connor (Reagan), Harry Blackmun (Nixon), John Paul Stevens (Ford), David Souter (Bush I)
 
Our founders did not use filibusters. In fact, for the first several Congresses (from 1789 to 1806), a majority of senators always had the power to bring debate to a close (cloture) by a majority vote.

Rules guaranteeing up-or-down majority votes and abolishing the filibuster in various contexts are commonplace in modern Congresses as well. In fact, there are at least 26 laws on the books today abrogating the filibuster. For example:

You cannot filibuster a federal budget resolution (Congressional Budget and Impoundment Control Act of 1974).
You cannot filibuster a resolution authorizing the use of force (War Powers Resolution).
You cannot filibuster international trade agreements (Bipartisan Trade Promotion Authority Act of 2002).
And as the minority leader, Sen. Harry Reid (D., Nev.), well knows, you cannot filibuster legislation under the Nuclear Waste Policy Act of 1982.
 
The restoration of Senate rules and traditions for judicial nominees enjoys both historical support and Senate precedent. But the constitutional power of a majority of Senators to strengthen, improve, and reform Senate rules and procedures is also expressly stated in the Constitution, and was unanimously endorsed by the U.S. Supreme Court in United States v. Ballin.

In Ballin, the Court unanimously held that unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. For example, the Constitution clearly states that each house of Congress “may determine the Rules of its Proceedings” (Article I, Section 5).
 
My point is that what’s good for the goose is good for the gander, Mr. Whealey. You can’t have it both ways.
 
Sources: http://www.nationalreview.com/comment/rushton200504211218.asp
 

Robert Whealey defends the filinuster, which is unknown in Europe and is not mentioned in the constitution: I made no comment about European Parliaments.  They work entirely differently from the living, evolving American constitution.  The implication of the original question seemed to be: If Europe has no filibuster, the procedure must somehow be undemocratic for American minorities to use it. Yes, the filibuster is not mentioned in the Constitution.  But women, parties, corporations, TV and the Internet are not mentioned either. Constitutional practice evolves through social and ideological conflict. The problem today is that an all powerful President glorified by the military, the intelligence agencies, the media can do no wrong. One corporate Republicratic Party is gradually creating a dictatorship.  It started in Texas, with Roosevelt, Rayburn and Johnson under the Democrats. Baker, two Bushes,Cheney, Delay, Rove now have a near totalitarian Republican Party in Texas.  Oil money is able to buy many votes. The Republican Presidents captured the White House in 1972 and 1984 with 49 States.  Historians know something has been wrong with American government. Clinton's election in 1992 was a squeaker.  The Republicans in the obsequious House of Representatives impeached Clinton on a flimsy charge. Thru money will the Republican Party have the Congress, the Courts ( with the end of the filibuster blocking devise) all locked up in 2008? You should see Senator Robert Byrd's Losing America, 2004.

RH: ·The living, evolving American constitution"? So are European constitutions.This is from the publisher's blurb for Byrd's book:In oratory that recalls the old Roman senate, and with the passion of the Founding Fathers, the distinguished senator from West Virginia--who is not running for anything--draws a line in the sand and says to the George W. Bush administration, Stop! Senator Robert C. Byrd, an octogenarian, has seen many presidents come and go, and he always engaged in the political give and take, whether it was gentlemanly or down and dirty. But it is the George W. Bush administration of the 2000 election and post-9/11 that gets his billy goat. They are wrong, he says, on Afghanistan and Iraq, wrong on homeland security, and wrong on how they see the American people. He charges them with incredible naivete, a penchant for secrecy, and a way of working that evinces, to him, a disturbing arrogance. What seems to bother Senator Byrd the most is that the usual checks and balances provided by the Congress and the Supreme Court seem to have been circumvented somehow.

Robert Whealey defends the filinuster, which is unknown in Europe and is not mentioned in the constitution: I made no comment about European Parliaments.  They work entirely differently from the living, evolving American constitution.  The implication of the original question seemed to be: If Europe has no filibuster, the procedure must somehow be undemocratic for American minorities to use it. Yes, the filibuster is not mentioned in the Constitution.  But women, parties, corporations, TV and the Internet are not mentioned either. Constitutional practice evolves through social and ideological conflict. The problem today is that an all powerful President glorified by the military, the intelligence agencies, the media can do no wrong. One corporate Republicratic Party is gradually creating a dictatorship.  It started in Texas, with Roosevelt, Rayburn and Johnson under the Democrats. Baker, two Bushes,Cheney, Delay, Rove now have a near totalitarian Republican Party in Texas.  Oil money is able to buy many votes. The Republican Presidents captured the White House in 1972 and 1984 with 49 States.  Historians know something has been wrong with American government. Clinton's election in 1992 was a squeaker.  The Republicans in the obsequious House of Representatives impeached Clinton on a flimsy charge. Thru money will the Republican Party have the Congress, the Courts ( with the end of the filibuster blocking devise) all locked up in 2008? You should see Senator Robert Byrd's Losing America, 2004.

RH: ·The living, evolving American constitution"? So are European constitutions.This is from the publisher's blurb for Byrd's book:In oratory that recalls the old Roman senate, and with the passion of the Founding Fathers, the distinguished senator from West Virginia--who is not running for anything--draws a line in the sand and says to the George W. Bush administration, Stop! Senator Robert C. Byrd, an octogenarian, has seen many presidents come and go, and he always engaged in the political give and take, whether it was gentlemanly or down and dirty. But it is the George W. Bush administration of the 2000 election and post-9/11 that gets his billy goat. They are wrong, he says, on Afghanistan and Iraq, wrong on homeland security, and wrong on how they see the American people. He charges them with incredible naivete, a penchant for secrecy, and a way of working that evinces, to him, a disturbing arrogance. What seems to bother Senator Byrd the most is that the usual checks and balances provided by the Congress and the Supreme Court seem to have been circumvented somehow.

I said: At Indiana University, Lee Hamilton gave an interesting talk on his new bool published by that university's press, / How Congress Works, and Why You should Care About it,/  Somehow, the filibuster came up in our discussion.  This peculiarly American institution has been satirized in books and films like "Mr. Smith Goes to Washington".  It did not occur to him that the filibuster blocks what is in theory the will of the people.
Democrats are loudly defending the filibuster. Gene Franklin writes: I don't see how the Mr Smith film can be characterized as satirizing the filibuster; it was more like glorifying, as I recall the film, but perhaps in my youth I missed the point. As for blocking the will of the people, I believe that on important issues, even important  actions such as civil rights legislation or confirming the appointment of Supreme Court Justices, the 'will of the people' should be able to attract at least 60% of the Senate. By the same argument, if the President  vetoes a bill, it takes (and should take) a super majority to override. RH: The Mr. Smith film did indeed satirize the filibuster. I repeat my question: Does any other parliamentary system have the filibuster?

Robert Whealey writes:The filibuster may not be used in Britain, but it is consistent with the Constitution. The Constitution divides power in two houses, in federal and in state governments. The election of the Senate is staggered 1/3 each year.  The President has limited powers. The Congress has limited powers, the judiciary has limited powers.  All of this prevents one party authoritarians from establishing a permanent majority for a one party system. After the civil war, the filibuster was used to protect Southern Whites from the industrial north. It helped keep the Democratic Party alive from 1865 to 1900. From 1900 to 1950 a new labor opposition grew up allied to the blacks which checked corporate power.  And the nation had a new balance of power. From 1930 to 1980, the Republicans became a minority on the national scale. They held on to some power by governorships and state legislatures and allying with the White Southern Democrats. Since 1948 the White Southerns joined the Republican corporations of the North to preserve their privileges.  The Republicans in 1968 took over the state legislatures, in 1980 they took over the Presidency and in 1994 they took over the Congress. More important the Republicans through the FCC took over the TV industry. The Republicans already had the metropolitan press since 1900. With the end of the "fairness doctrine",TV is not presenting news, but entertainment. The voters have never been so irrational as today. Jefferson points out that the electorate must be educated for democracy to survive. Now in 2005 the few liberals left are in the courts.  If the filibuster goes, and the Republicans stack the courts, will two party government come to an end?  Has not the Constitution with the checks and balances been eroded by corporate power, allied to the remains of the White racists and authoritarian religious folk who hanker for monarchy with Christ the King? If the Republicans control the Supreme Court in 2008, will they pull off a coup d'etat?

The filibuster does protect minorities.  Intellectuals are a minority and I vote Democratic.

RH: I simply don't follow this argument, which suggests that intellectuals and other minorities are not protected in European democracies, which they certainly are. The filibuster is not mentioned in the US Constitution, and to appeal to it avoids the issue,


Ronald Hilton 2005

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last updated: June 8, 2005