Filibuster: Dairy Queen Treat or Senate Shenanigan?
I have started this post no less than four times, each time deleting up to four paragraphs of “lead in” commentary because the words were not going in the right direction. It is Friday, August 25, 2017, and there is a catastrophic Category 4 hurricane bearing down on the Texas gulf coast. The President of the United States continues to insult not just his opponents, but members of his own party to satisfy his own personal grievances. He has pardoned a convicted “sheriff” who refused to honor a federal judge’s order to stop the infringement of the Fourth Amendment’s protection against illegal search and seizure. Joe Arpaio racially profiled the citizens of Arizona. He was told to stop by a federal judge and Arpaio said, “fuck you” and blamed Obama.
So that’s my lead in. The picture that you see here is of the United States Senate chamber in the 1930s. Certainly, there have been upgrades but the chamber looks very much the same today as it did in Roosevelt’s day. I have been fortunate to have seen it (and the House Chamber) live many times and to have sat in the gallery while the Senate (and House) was in session. Once, I remember sitting behind Senator Glenn (Yes, that Senator Glenn – the astronaut) who was clearly playing tour guide to a couple of special guests! Even with the increased security, anyone can observe debate and sit in the galleries, regardless of whether Congress is in session. You need passes from your representatives, so plan ahead – but this is your right as an American citizen. Go. Observe. Listen.
This post is fundamentally about the Senate and specifically about the filibuster. Trump has been “Tweeting” about both recently and I thought it might be worthwhile to discuss the “what’s” and “why'” behind this filibuster thing and why the Commander in Chief seems so annoyed by it.
Before getting into the filibuster though, let’s just muse on the Senate’s ROLE in our government. We tend to lump our representatives together and think of them all in the same way. But the House and Senate are very different bodies and should be described as such. We learned in high school government (actually, some of this would have been junior high social studies) about the compromises that produced our bi-cameral legislature. The infamous three-fifths compromise will indelibly be linked to the House of Representatives, and the upper chamber, the Senate as the nod to the small states in the Northeast and the mid-Atlantic. But the Senate was also established to be a step removed from the voter; senators were not directly elected. They were instead chosen by state legislatures and thus were beholden to state office holders and the party establishment, not the people directly.
The 17th amendment provided for the direct election of senators. It was ratified in 1913 in time for the 1914 mid term election. This was a significant change to the Constitution and an important step away from “republicanism” to “democracy” because it meant that Senators had to campaign for election and were susceptible to populism and public opinion polls. Being one step removed from the voter, conceptually allowed Senators to vote based on what was best for the country, their state or region rather than their political fortunes. The 17th amendment and the direct elections that we have today put both the House and the Senate on the same playing field.
But the Senate is different from the House in many other ways. Senators have six-year terms so they do not have to campaign as often. The Senate is considered the “upper chamber” and yes, that is exactly what it sounds like. The Senate is the House’s cocky older brother; I think of the House as the rebellious fraternity’s underclassmen. Yes, there are the geeky class officers, but still – they are the underclassmen. The Senators are the grownups. They are the upperclassmen (and women of course). They approve Cabinet members and justices. The Senate is considered the “moderating voice” because each Senator has to represent their entire state and not just their individual gerry mandered district. The Senate should be the more measured and deliberative body, or that is the hope.
Both houses of government have rules – many of which I do not know, let alone explain. I suspect these rules are based on “Robert’s Rules of Order” or something like that and have become more complex over time. And let’s not assume that “complex” is necessarily bad. Let us instead assume that complexity evolved or was necessary as the country grew and the Senate got bigger. If you want to argue that point – please go research and then come back with facts.
The filibuster is not in the Constitution. The Constitution assumed that a majority vote would carry, so in today’s numbers, 51 votes should pass every bill. However, and I had to look this up, in 1806 the Senate accidentally created the filibuster. In 1789, the Senate established rules that allowed Senators to essentially “move” to end debate on an issue. They called it something else. In 4-H, we would say, “Madame President, I move to cut off debate,” and then there would be a vote. So that is what I envision happened in 1789. Well – except for the ‘madame’ part,
In 1806, Vice President Aaron Burr, as President of the Senate, said that “moving or motioning” to end debate was redundant because apparently, it had only been exercised a few times in the previous few years. So in a rare bid for efficiency, the Senate passed a rule to remove the process to cut off debate, thereby creating a situation where debate could continue forever.
So what is the filibuster? Well, in modern vernacular, it is when a Senator of either party just will not stop talking. There are rules around it; the Senator has to stand the entire time in the chamber. He or she can yield time to a fellow senator (often of his/her own party) in order to rest the voice, but the filibustering senator cannot leave the chamber. In order to close debate (thus, stop the filibustering Senator from talking), the Senate has to invoke “cloture.” And “cloture” requires two-thirds of the Senate to agree. And two-thirds of one hundred is sixty.
I am now going to fast forward 211 years. You are welcome. The filibuster has evolved and changed but neither party has voted to eliminate it completely. During the Obamacare repeal and replace attempt we heard a lot about the budget reconciliation process being exempt from the filibuster. I do not know anything about that law but I suspect smart people in the early 70s thought it would be stupid to hold budgetary issues hostage by endless debate and thus, a simple majority could move that type of legislation. So any bill that falls within the perimeters of budget reconciliation can move through with a simple majority. However, if it violates any of the rules (and there is a Senate parliamentarian), then it has to go through regular order.
Another exemption to the filibuster has been Cabinet and judicial nominees. Everyone will recall the SCOTUS nomination – the ONE accomplishment that Trump can claim but even that took breaking the filibuster and stealing the seat from Obama. But I digress.
The President has attacked his party’s congressional leadership (which I understand – I would attack them too, but for completely different reasons. And I would use complete sentences and I would ensure the facts were correct). But the President attacked the Senate leadership specifically over NOT abolishing the filibuster on legislation. Essentially, Trump is mad that Majority Leader McConnell will not eliminate the rule requiring sixty votes to stop debate on a bill to move it forward to a final vote. So when Trump says that “eight” Democratic senators are holding the Senate “hostage” he is referring to the difference between the 52 Republican Senators and the 60 needed for cloture. He is arguing against bi-partisanship.
That is what the filibuster promotes. It does it in an odd way, but in this era of polarized politics, I will take what I can get. In one house of Congress, even though the GOP has a majority, major legislation still requires a super majority and in this case, requires support from Democrats. This will be critical as Congress reconvenes from the August recess and takes up the budget and the debt ceiling legislation. In order to get those votes, legislation has to be agreeable to enough members from the other side. We saw what happened when legislation was not agreeable to the other side – it failed. Spectacularly.
In an effort to convince McConnell, Trump claimed in one of his Tweets that “Democrats would get rid of the filibuster if they had the chance.” In his mind, his agenda has a much better chance of moving forward if it only needs 51 votes. First – Democrats have not voted to eliminate the legislative filibuster in 200 years and I do not expect them to do so now. And I do not need a second. Ending the filibuster will not solve any of the President’s problems. I will note though that in an interview with Orrin Hatch, conservative Republican from Utah, he said that eliminating the legislative filibuster was the quickest way to socialism. I did not really explore that statement – I found it funny. And I still do.
On a more mature note, the accountability that we should levy against our Senators – especially our Senators – is much greater than what we do today. The men and women who sit at these desks, do so with our permission. They belong to the most exclusive club in the world and they get their membership card from us. The filibuster might seem like a ridiculous parliamentary trick to delay or obscure legislation and sure, it has been used to do that in the past. But it is part of a much larger institution – one that remains unappreciated by the people it represents and clearly disrespected by others.
I am tired of both. Thanks to my Aunt Sondra, I got to be a Senate intern the summer before my senior year of college. It was the one time that I had ‘connections’ and it allowed me to live at her house and commute into the District every day for a couple of months. Senate interns had a few responsibilities. We researched and answered constituent correspondence (Back then it was all phone calls and written letters. Our responses were entered into the mainframe. “Online” meant that the electricity was on). But we also went to hearings and committee meetings. We did not have any real responsibilities and the aides let us think we did.
As interns, we were always encouraged to go to the chamber when the Senate was in session. We would also go over to the House side if there was a vote or something special happening. To be honest, I remember only a few votes and few moments. I remember passing Strom Thurmond in the hallway; for a former Dixiecrat and states’ rights advocate (read “racist”), he was very polite. I am pretty sure he had hair plugs. I remember the John Glenn moment in the Senate gallery – watching him play tour guide. I was an intern in Senator Kassabaum’s office and so we did see her quite a bit. Senator Dole, Kansas’ other senator was a bit more aloof, but then again, he was Minority Leader and was busy opposing the Democrats. And of course, I remember the Lion of the Senate – the Liberal Hero – Ted Kennedy most of all. 1994 was a high point of his career and whether he was in the majority or minority, he was a master of the Senate.
The point of this post, in addition to explaining the filibuster, is to emphasize the importance and significance of this institution. The filibuster is one aspect that makes it unique and forces compromise. It also helps protect the minority. Unlike the House, the Senate minority has some power; and that power comes from the Senate rules, one of which is the filibuster. Getting rid of it makes no sense because removing it reduces minority power which can lead to unstable political environments that can quickly spiral out of control.
I have been really saddened this past year over the level of political discourse in America and in the tradition of that movement “When I am old, I shall wear purple,” I have been verbally “open” about my disdain. But every once in a while, something does happen or more specifically, somebody does or says something that makes me feel a little better about our current environment. Senator McCain’s vote on the Obamacare “skinny repeal” was one of those moments. Senator Orrin Hatch’s initial response to the President’s “Tweet” banning transgender individuals from military service was another. But back on June 15, 2016, my Senator, Chris Murphy demonstrated how the filibuster could be used to advance the cause of the minority.
In response to the Pulse nightclub shooting in Orlando, Florida a few days prior, Senator Murphy began what became a fourteen hour and fifty-minute filibuster, pledging to hold the floor for as long as he could or until the Republican controlled Senate held a vote on two gun-control measures. Republicans regained the majority in 2014 and controlled the agenda. Democrats had proposed two gun control measures, both of which continue to poll quite well with the public; banning those on the no-fly list from weapon’s sales and closing the background check loophole for gun shows and online sales. Republicans managed the committees and would not bring the bill to the floor for debate. Senator Murphy, citing the Senate’s refusal to do anything in the wake of the 2012 Sandy Hook massacre that killed 20 children and 6 adults in Newtown, Connecticut took the floor after the Pulse nightclub shooting to demand action.
He yielded time to his Democratic colleagues in order to rest his voice and there were a few Republican Senators that worked in the background on compromise legislation that could at least be debated. Senator Murphy ended his filibuster after receiving a commitment that the two provisions would be presented as an amendment on the floor for debate. Not surprisingly, both failed. My thoughts on the National Rifle Association will be saved for a future post.
I will leave everyone with this thought. Most of us care deeply about the institutions in our lives. For some, it is our church and faith. For others, it is a charity, school or union. The are countless organizations and entities that we all hold dear. Government and historical institutions are to me what a religious organization may be to someone else. The constant denigration and disrespect from so many sources can sometimes feel like a personal affront.
I refuse to allow these institutions to be usurped by individuals and movements that do not understand their history, importance, and purpose for being. And I also refuse to accept the ongoing apathy and neglect that so many of us practice with regularity. We all do it. It is so easy to take our democracy (or the republic) for granted. We say to ourselves that all the craziness in Washington is par for the course – that everyone in DC is crooked and that you cannot believe any politicians. You can even tell yourself that your vote does not count and to not worry about Trump or the Republicans or anything going on because it will all work out.
There has never been a guarantee that our Constitution will “work out” and we should expect that to change now. The strength of our democracy is equal to the strength of our weakest institution and it really is within our control and power to strengthen the weakest link. I am going to focus on the Senate and I expect the Republican Senators to hold the leader of their party accountable. They have not done so thus far, but I can continue to demand it.
In the interim, stop complaining until you understand all sides (or at least part of all of the sides). And if you can visit DC. Take a day to spend at the Capitol. I would suggest grabbing the tour of the Capitol dome and then arranging for passes to the Senate and House galleries. You might also see if you can arrange for personal tours by an intern or staffer. They can show you stuff that is not on the regular tour – or at least they could…20 years ago.
Amy, August 2017