The Filibuster: According to Robert Taft

The Filibuster, According to Robert Taft

by George W. Liebmann

Public congressional approval ratings have rarely been above 20% since 2012 and currently stand at 15.3%. This is a result of the manifest inability of the Senate to enact significant legislation by reason of the three-fifths cloture rule. Speaking of filibusters in 1946, the then Senate Majority leader, Robert Taft, prophesied Congress’ fall to its present low estate. In a letter in 1946 relating to the Full Employment Bill establishing the Council of Economic Advisors, Taft had explained “I have always said that I would vote for cloture on any bill after adequate debate had been had. After all, we have a system based on majority rule. If the minority undertakes to prevent action by the majority beyond proper limitations, we are likely to find Congress completely discredited.” He again declared his position on cloture to the NAACP’s Walter White in early 1949: “[I favor} a fair amount of debate on public issues and sufficient time for the public to be informed of what is being done. Two thirds is perhaps more than is necessary. I have always voted for closure. . . when I feel that adequate time has been given.”

Defenders of filibusters treat unlimited Senate debate as a constitutional principle. It is true that the Constitution says that each House shall make its own rules. But, because of the availability of motions for the previous question, filibusters did not become possible until a ruling by Vice President Burr in 1816 held such motions to be unavailable, and the first filibuster did not take place until 1831. After a successful filibuster by Senator Robert La Follette and others against the Armed Ship Bill in 1917, the first cloture rule requiring a two-thirds majority of all Senators was adopted, modified in 1959 to require 2/3 of those present and in 1975 to require 3/5 of those present. A majority rule cloture has now been adopted for nominations, but not for legislation.

The potency of filibusters has been enhanced in reason years notwithstanding the erosion of super-majority requirements by the advent of what former Senator Robert Dole has called ‘the gentleman’s filibuster’ in which Senators do not actually hold the floor but merely signify their intention to do so, triggering abortive cloture votes which fail for want of the required super-majority. Even nominations subject to majority vote can be delayed by thirty hours through use of this device, the fate of nearly all of President Trump’s nominations, even the least controversial of them.

The pretense that the rule avoids ‘tyranny of the majority’ has worn thin. Historically its most important use was to obstruct civil rights legislation at a time when actual speeches were required. Whatever may be thought of the position of the Southern Senators, this was a large issue, calling forth long speeches and midnight sessions unlikely to result now if ‘gentlemen’s filibusters’ were abolished. Now, as a practical matter, all Senate legislation requires a three-fifths vote, a recipe for deadlock when the Senate is nearly evenly divided, which insures that something in the nature of a political earthquake is needed to pass all substantial legislation.

It is not surprising under these circumstances that Congress has been increasingly by-passed, by crude and divisive judicial legislation on the one hand and by abuse or attempted abuse of executive rule-making on the other.

Clearly, the filibuster is not part of the Constitution. The composition of the Senate itself, with its ‘over-representation’ of small states and its six-year staggered terms was the check on majority tyranny that was provided. When the framers wanted super-majorities, they explicitly provided them, in five instances: impeachment, expulsion of members, overriding of presidential vetoes, ratification of treaties, and removal of Presidents under the 25th Amendment. The late Lloyd Cutler expressed the view that “a strong argument can be made that its requirement of 60 votes to cut off debate . . . [is] unconstitutional”, also the view of the late Professor Philip Kurland. Speaker Nancy Pelosi has decried “the 60-vote stranglehold on the future.”

Normally, a change in control of the Senate would foster enactment of legislation which moves some distance toward the preferences of the majority party, without delivering a total victory and leaving the promise in two years of a change in the other direction if control altered. But when majorities cannot legislate at all, stasis results, together with the bottling up of pressures for change, leading to demands for sudden and even extra-constitutional measures. Legislatures are agencies of compromise and in a democracy must be allowed to do their normal work. There remains the safeguard of executive veto by a President normally sensitive to a national majority, and of judicial review. Majority rule in this sense is a conservative principle: one allowing adjustments without explosions. The last two Congresses have drastically curtailed the filibuster. They should finish the job, or at least restrict its use to those actually occupying the floor and participating in public debate.

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