American political mythology and the Senate filibuster.
On the other side of the Capitol building, however, the revolutionary spirit was much more tempered. For most of the first two days, the meticulous U.S. Senate debated an amendment by Senator Tom Harkin of Iowa that would have greatly reduced the power of the much embattled procedural rule known as the Senate filibuster. With the glow of the national media on Gingrich and the House, the upper chamber's laggard deliberations went largely unnoticed.
The contrast between the two bodies was similarly evident throughout the celebrated first 100 days of the 104th Congress as the House of Representatives quickly, if not hastily, passed nine of the ten Contract with America items only to see those same measures pile up on the other side of the building, backlogged in the Senate docket. In both historical design and contemporary practice, there is no monolithic Congress; the House of Representatives and the Senate are two very different institutions.
The Senate's unique position within the bicameral legislature is typified most clearly by Senate rule XXII, the so-called filibuster rule, which allows for free and unlimited debate in the Senate. The filibuster has a long and storied history; from the events leading to U.S. entry into World War I to Frank Capra and Jimmy Stewart's dramatic romanticization of the filibuster in Mr. Smith Goes to Washington to the contentious civil rights debates of the 1960's, the American public has witnessed the practice of filibustering in the Senate with both scorn and adoration.
This essay attempts to examine the history of the filibuster with a particular eye toward the ways in which the discourse surrounding the attempts to eliminate the filibuster exemplify certain fundamental contradictions in American political mythology. The debates make it apparent that popular democracy and the American form of republican government are often as contradictory as they are collaborative. More succinctly, yet likely more blasphemous to American sentiment, the relationship between Democracy and The Constitution of the United States is tenuous at best. The debate over the filibuster provides an especially lucid contemporary example of how these conflicting mythologies, which have been part of American politics since one could properly claim an American politics, are reconciled over time and within very different rhetorical contexts.
Because the debate over the filibuster closely resembles the original debate over the Senate's role in American government and because the intent of the Founding Fathers is appropriated by both sides of the contemporary debate, it is necessary to examine briefly the history of the United States Senate. Turning back to the Constitutional Convention of 1789 allows us to understand better the genealogy of American political mythology and the constitution of the two competing, if not contradictory, conceptions of American government that are at the heart of filibuster debates. After examining the relevance of Senate history to the current debates, I turn to the discourse in the debates over the filibuster to determine how what I call the political mythologies of Democracy and The Constitution, which are most often in a state of dormant contestation, come to the fore.
I will focus primarily on two debates: the debate of 1917, the first time a "cloture rule" was allowed in the Senate, and the most recent debate of 1995, in which Senator Harkin's proposed rule change failed by a vote of 76 to 19 (CR, 1995b). Finally, some conclusions will be drawn about the role of the filibuster in constitutional government and how that role exemplifies the dissonance between America's version of democracy and America's idea of democracy.
Before examining the genesis of the political mythologies central to the filibuster debate, I pause to clarify and expand on my use of the term. By political mythologies, I refer to those historically sacrosanct rhetorical constructs that influence contemporary political realities and largely constitute national American identity itself. American political mythologies such as Democracy and The Constitution are in this view a type of rhetorical collage, whose contemporary form has been constructed piecemeal over more than 200 years and is continually evolving to embody national political ideas and ideals both historical and contemporary.
The function served by mythologies in the political arena is not unlike the function of the mythical tale in primitive societies: they express, enhance, and codify the beliefs and values that are common to a particular culture (Malinowski, p. 19). For contemporary public argument, mythologies provide rhetors not only a resource from which to draw certain conceptions of American sentiment, but also a means for the creation and transformation of such sentiment.
Contrary to the common connotation of myth which presupposes falsity, I am in agreement with Murray Edelman who privileges the practical importance of such discursive constructions: ". . . [myth] includes much that is plainly contrary to what we see happen, yet the myth is all the more firmly believed and the more dogmatically passed on to others because men want to believe it and it holds them together" (p. 1). David Kertzer also alludes to the unifying function of mythologies, saying ". . . symbols provide a way to understand such abstract political entities as the nation and a means (indeed the compulsion) of identifying with them" (p. 13). Often steeped with patriotic and nationalistic sentiment, mythologies help define what it means to be an American.
Given the diachronic nature of myth, an analysis of political mythologies requires attention to both historical legacies and contemporary continuities. Claiming myths are a "historical phenomena," Leonard Thompson concurs by explaining that political myths "originate in specific circumstances as a product of specific interests, and they change with the changing interests of successive generations. . . . They vary in intensity: they may be dormant, they may flourish, they may decline, they may die out . . . they may serve one interest at one time and another interest later on, or they may be manipulated to serve more than one interest at the same time" (p. 8). Like a collage whose most salient features change with successive layers, mythologies are rhetorical constructs imbued with the layers of history, but strategically constructed anew to fit the specific context in which public arguments are being advanced.
In summary, political mythologies will be used in this essay to describe both historical and contemporary phenomena, entities that have historical legacies but endure in the continual process of becoming contemporary. Second, mythologies are rhetorical constructs that are an inevitable and necessary part of contemporary culture, serving as points of intuitive reference for social agents to make sense of their world. Finally, I hold political mythologies to be marked by an elasticity that leaves them open to transformation in different historical contexts and different rhetorical forums.
The immediate concern is with the genesis, transformation, and application of the political mythologies of Democracy and The Constitution as indicated in the filibuster debates. These two mythologies have throughout history been balanced against one another as antithetical forces at opposite ends of a continuum. That is, the rhetorical themes constitutive of these two mythologies are used in political public argument to reconcile the conflict between pure democracy and the Constitution of the United States. Given the ambiguity and openness of these symbolic forms, the mythologies of Democracy and the The Constitution are simultaneously antithetical and complementary. Rhetors in the political arena attempt to use the inherent ambiguity to their advantage, seeking to alleviate the dissonance between notions of direct democracy and the practice of American republicanism by arguing for one balancing point or another along the continuum. In an effort to uncover the genesis of these political mythologies, we turn to the genesis of the American republic itself.
FEDERALIST AND ANTI-FEDERALIST THOUGHT
James Madison stated in Federalist Paper #51 the general concern of many at the Constitutional Convention: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself" (Rossiter, p. 322).
The participants of the Constitutional Convention, known as the Federalists and the Anti-Federalists, encapsulated the varied and discordant political ideas and ideals of 1789. The Federalists favored a strong national government for the new republic and supported the final Constitution. They believed strongly in the idea of representative government as hierarchical, in which "elites" would be chosen by the people to represent them. Such representation was to be more, however, than a simple reflection of popular opinion. In Federalist #10, James Madison explained the basic Federalist idea of representation, in which the chosen representatives would "refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country. . . ." (Rossiter, p. 82). The Federalists viewed representation as a "filtering" of public opinion through representatives of higher social order (Ellis, pp. 63-67).
While the Federalists strongly endorsed representation, the Anti-Federalists conversely saw representative government as an unfortunate necessity. That is, they accepted the principle of representation only because of the realization that pure democracy was simply untenable outside the limits of a small town or village. For them, representation was the means through which "democracy" could be transformed from its current status as a derogatory term connoting plebiscitary and mob rule to an operable system of self-governance.
The Anti-Federalist's practical acquiescence should not undermine their theoretical opposition, however, for their lingering anxieties are constitutive of the contemporary political mythology of Democracy which maintains that the more directly the voices of the people are represented, the closer the government is to truly being democratic. Ellis claims a contrasting metaphor that illuminates this view of representation: "Instead of the Federalists metaphor of a filter, Anti-Federalists offered the metaphor of a mirror to describe the proper relation between constituents and representatives" (p. 64). Thus, representatives were to mirror the wishes of their constituency, serving primarily as a conduit through which the voices of the people were made audible in the legislative process.
The Constitution itself arose out of an attempt to balance the two extremes of monarchy and plebiscitary democracy (Wood). In its original inception, the Senate was constructed as the body more affinitive with the Federalist fear of pure democracy and a filtering notion of elite representation. The House of Representatives by contrast was constructed with more members and smaller constituencies, making the popular mirroring of the peoples' wishes more feasible. Additional measures were taken to ensure that the Senate would play a central role in controlling the "tyranny of the majority" arising from the lower chamber of the legislative branch as well as serving as a control against the executive branch of government.
In Federalist #63, Madison spoke specifically of the importance of the Senate in its constitutional role as the superior body limiting popular democracy from the House of Representatives and controlling what would later become known as an "Imperial Presidency." His description of the role of the Senate is worth quoting at length:
... such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow mediated by the people against themselves, until the reason, justice, and truth can regain their authority over the public mind? (Rossiter, p. 384)
To ensure a strong controlling and superior status of the Senate, the Constitution requires that Senators were appointed by the State legislatures of their respective states every six years rather than being elected by popular vote every two years as in the House. As Eldridge Gerry of Massachusetts said, "the commercial and monied interests would be more secure in the hands of the state legislatures than of the people at large" (Cited in Brant, p. 228). Historian Irving Brant explains: The framers "intended that the Senate should represent the wealth of the country, especially the commercial and money-lending interest, while the House represented the landed interest, or the people in general" (p. 227).
The Federalists, as we have seen, advocated a system of government which emphasized the necessity of a gentried elite and was based on notions of hierarchism. Coming largely from smaller states with more democratic interests, the Anti-Federalist conversely believed that the ideal form of government was based on localism and the Jeffersonian citizen-farmer.
The Constitutional Convention of 1789 created a Constitution - and a Senate - of largely Federalist cloth. The Anti-Federalists strongly opposed the constitution and fought for its defeat. Despite narrowly losing that battle, certain ideas, such as equal state representation in the Senate, were included in the Constitution. The final document, in the words of Thomas Jefferson, represented a compromise "between a democracy (the only pure republic, but impractical beyond the limits of a town) and an abandonment of themselves to an aristocracy, or a tyranny independent of the people" (Sheldon, p. 85). Jefferson worried about the tyranny independent of the people as much as the Federalists worried about the tyranny of the people. The U.S. Senate in its original inception played a fundamental role in alleviating both anxieties.
REESTABLISHING CLOTURE - THE DEBATE OF 1917
Having abandoned the "previous question" in 1806, there were no motions by which Senators could end debate and call for a vote prior to the first cloture rule in 1917.(1) As the long-winded orators of the late 19th century began to make their mark on Senate proceedings and began filling the pages of the Congressional Record, criticisms of the filibuster became more frequent. Various proposals were offered from 1845 to 1916 which would have greatly curtailed unlimited debate.(2) However, it was not until public attention was drawn to the filibuster and the accompanying public outcry against the rule caused considerable pressure on the Senate were Senators able to garner enough votes to allow for the first cloture motion in 1917.
In examining the ways in which the competing political mythologies of what I have called Democracy and The Constitution became operative in the 1917 debate over cloture, it is necessary to broaden our forum of inquiry to include more than the debate that took place within the old Senate chamber. That is, the events taking place within the entire political arena and the subsequent public pressure on the Senate are central to an understanding of the 1917 debate and the ways in which the mythology of Democracy found increased salience during this time period.
The final filibuster unfettered by any means of cloture took place on March 2, 1917. The Senate began debating a bill authorizing President Woodrow Wilson to supply arms to American merchant ships. Several Senators, including one of the most celebrated practitioners of the filibuster in Senate history, Robert La Follette of Wisconsin, feared the legislation would necessarily lead the United States into war without Congressional approval (Burdette, p. 118). The Senators opposing the bill defended their use of the filibuster on classic constitutional grounds: they were checking a despotic executive threatening to take the country into war. Senator George W. Norris of Nebraska framed his opposition to the bill within the constitutional role of the Senate: "It abdicates our power; it gives to the President in effect the right to make war . . . . Do we want to surrender to the Executive the power that is ours under the Constitution?" (CR, 1917a, p. 5008).
Claiming the President was exceeding his executive authority, Norris used Wilson's doctoral dissertation entitled, Constitutional Government: A Study in American Politics to argue against the President's actions. With biting sarcasm, Norris extensively cited Wilson's theoretical/academic writing explicating Congress' constitutional role in curbing the possible abuses of the executive in order to undermine the President's current political position as the executive (CR, 1917a, p. 5008). In part because Wilson did not send the bill to Congress until six days before the Sixty-fourth Congress was constitutionally required to end, the filibuster was successful, and the Armed Merchant Ship bill died when the Senate adjourned sine dine at noon on March 4, 1917.
As with the original debate between Federalists and Anti-Federalists, the progressive movement of this era, with its populist antecedents, reacted against what was portrayed as an elitist, aristocratic government out of touch with the wishes of the people. They wanted to bring representation closer to the mirror analogy of representatives voting directly as their constituents wished and generally mistrusted the current elitist government. In his influential history of this era, Age of Reform, Richard Hofstadter called this time period "the generation that wanted to bring about direct, popular role, break up the political machines, and circumvent representative democracy" (p. 18).
If direct democracy was a derogatory term in the late 18th century, representative democracy began to engender similar feelings in the late 19th and early 20th centuries. As one of the progressive era's most articulate leaders, Wilson attacked the actions of those Senators who helped defeat his Armed Ship bill with a scathing attack against them, the Senate, and its procedures. Claiming the defeat of the bill was a "situation unparalleled in the history of the country, perhaps unparalleled in the history of any modern Government," Wilson admonished the Senate at length:
The Senate has no rules by which debate can be limited or brought to an end, no rules by which dilatory tactics of any kind can be prevented. A single member can stand in the way of action, if he have but the physical endurance. The result in this case is a complete paralysis alike of the legislative and of the executive branches of the Government. . . . Although as a matter of fact, the Nation and the representatives of the Nation stand back of the Executive with unprecedented unanimity and spirit, the impression made abroad will, of course, be that it is not so and that other Governments may act as they please without fear that this Government can do anything at all. We cannot explain. The explanation is incredible. The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible. The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be so altered that it can act. The country can be relied upon to draw the moral. I believe the Senate can be relied on to supply the means of action and save the country from disaster. (Heckscher, pp. 231-233)
Wilson's now famous "Little group of willful men" speech excerpted above has been called one of the most notable Presidential attacks on the Senate in history (Byrd, p. 122). In this speech, Wilson emphasized the mirror analogy of representation. He argued that the ends of progress, reform and change should be served. To do this, government had to reflect the wishes of the people and to bypass the obstruction of an aristocratic elite who hid behind the Constitution.
Wilson cast himself in favor of "the will of the people" and against the stagnation of democracy brought about by the filibuster. While attacking the filibuster rule itself as undemocratic, Wilson reserved the strongest vilification for the little group of willful practitioners who "represent no opinion but their own." These men were portrayed as elitist representatives standing in the way of the wishes of the American people. The contrast was drawn between the filtering elites in the Senate and Wilson as a mirror representative of the peoples' wishes.
Wilson fused these contrasting notions of representation with the American mythology of progress, exemplified most clearly by the progressive era. Ernest Tuveson, in his study of America as a Redeemer Nation, maintains that the myth of American progress was initially a sacred notion of the coming millennium, but over time became secularized into a progression toward an earthly utopia, finding one of its strongest adherents in the rhetoric of Wilson. As a millenarian belief, anything blocking the progress of America was assumed quite literally to be the work of the devil. Even as the myth of progress lost the weight of such divine overtones and became enveloped in the progressive movement, obstructions to progress such as the filibuster were strongly vilified.
American mythology throughout history has contained this secularized version of progress, reform, change - the general movement forward toward the fulfillment of America's destiny. For Wilson, the filibuster itself stood in the way of progress and precluded a more direct form of democracy of the people because of the power it afforded elitist representatives.
Looking specifically at the political arena in 1917 to examine political mythology also requires attention to historical changes within the Senate itself and an understanding of the extent to which the themes of Democracy as a political mythology were increasingly influential for Wilson and other progressives. The Seventeenth Amendment requiring popular election of Senators, ratified only four years earlier in 1913, was one of the progressive movement's biggest victories - and is most often tagged a "progressive amendment" precisely because it was based on these same themes of progress and the "democratization" of the Senate and the Constitution itself (Bernstein, pp. 122-128). While some states were popularly electing Senators before it was constitutionally required, the Senate was still largely seen as a "rich man's club" out of touch with the interests of its constituency (Rogers, pp. 105-106). The elitist method of appointing Senators was portrayed as the problem; the democratization of the Senate in 1913 with the Seventeenth Amendment was the solution.
Within this historical context, Wilson played on a need to democratize further the Senate, casting the elimination of the filibuster as the new and contemporary means to do so. Again, he constructed the Senate rule as a blockade in an attempt to envelop the filibuster as the problem. In Wilson's words, the Senate "stands in the way of action," the "dilatory tactics" have "paralyzed" democracy to the point where the government of the United States is "helpless" and "contemptible." Reaffirming his faith in the will of the people, Wilson, said "there is but one solution" and "the country can be relied upon to draw the moral" and "save the country from disaster."
It is important to note here how Wilson not only drew from previous forms embodied in the political mythology of Democracy, but in fact transformed that mythology to his own views on how American government must be altered to live up to the tenets of Democracy. That is, Wilson transformed the mythology of Democracy to the specific historical context and helped seal the fate of the filibuster. In short, Wilson constructed "cloture" as the newest and most salient layer on the Democracy collage.
Thomas W. Ryley describes the public outcry against filibustering following Wilson's speech. Numerous comparisons between filibustering Senators and Benedict Arnold were made. The New York World called them "pusillanimous [wretches] who had denied their country's conscience" (p. 132) while the Hartford Corant dubbed them "political tramps." The Portland Free Press refrained from name-calling, simply stating that those who engaged in the filibuster "should be driven from public life" (p. 133). Public outcry was so strong following Wilson's statements that filibustering Senators like Robert La Follette were burned in effigy on college campuses and literally spat upon in the nation's capital (Greenbaum, p. 156).
The Senate reconvened in special session. Debate over the cloture rule unfolded. Populist democrats privileged the type of direct democracy and progress articulated by Wilson. Republican constitutionalists privileged representative democracy and the constitutional traditions of the Senate. Building on the significant momentum established by Wilson, the opponents of the filibuster wanted to reduce the distance between government and citizens, "get things done" in order to satisfy the "will of the people," and claimed democracy to have been subverted through the "undemocratic filibuster." They claimed that the filter known as the filibuster had clogged majority will. The rule, therefore, must be eliminated.
Those defending the filibuster, on the other hand, argued for a need to preserve the largely Federalist Senate's tradition of deliberation among elites. Supporters of the filibuster claimed its primacy in the Senate, often saying that "without the filibuster, there would be no Senate." They privileged the Senate's role in checks and balances, the Senate's role as the forum of the states - and, in an occasional breath of candor-claimed that the American form of government is not a democracy, but a republic.
Thus, those who argued against the prevailing mythology of Democracy attempted to use the themes of the mythology of The Constitution. They privileged the filtering role of representative democracy by valorizing the Constitution with its tradition of checks and balances. To them, the ideal American government would be one ruled by cool, deliberate, and prudent legislative elites. Such a government would ensure civic virtue and liberty by controlling the ephemeral, plebiscitary passions of what would otherwise amount to a version of mere mob rule.(3)
The actual debate over supplying Wilson's "means of action" - a cloture rule - when the Senate reconvened was largely a fait accompli given the public's demand for change. The rhetorical battle over the filibuster was joined and possibly won by the saliency of Wilson's rhetorical attack with the American public. As we have seen, the American public strongly sided with Wilson and the great majority of the Senate that was originally in favor of the Armed Merchant Ship bill. More importantly, the American public agreed that the progress of the nation, and true democracy, were being thwarted by a few select legislators using the filibuster.
The arguments of those who did defend the use of the filibuster revolved around the filibuster as a representation of the unique status of the Senate as defined in the Constitution. Senator Lawrence Sherman of Illinois was the first to defend the filibuster in 1917 by claiming that a "change in the rules will eventually lead to making of the Senate just such a legislative body as the House of Representatives is" (CR, 1917b, p. 23).
Sherman rhetorically framed the filibuster as the sole defender of the constitutional principle of checks and balances. In the process, he attempted to transform the filibuster from a dilatory tactic blocking true democracy to the means by which constitutional principles can be defended and upheld. Sherman's closing statement indicated the extent to which the filibuster itself was rhetorically transformed from a parliamentary maneuver to a rhetorical construct which attempts to embody the mythological tenets of The Constitution:
The only successful opposition to the vast power of the President is the open forum of the Senate. The cloture in the Senate becomes the ally of Executive usurpation and caucus rule. . . . [The Senate] is the only barrier in the way of supreme Executive control in the United States. If a cloture is adopted in the Senate, that barrier is swept aside. Hasty or injurious legislation is thereby made more possible than at present. History has demonstrated that Presidents may err. We acknowledge their sincerity and patriotism. We have a right, however, in the Senate at least to question their infallibility. It is there that the Executive measures are tested, tried, and in the open forum of the Senate approved or rejected. If this be a filibuster, let Senators and the people manfully acknowledge that it is justified under our plan of government so long as present practices continue. The filibuster is a proper corrective to caucus or conference action, the overshadowing influence of the President, and the dual system of national government by population and by States. The open forum in the Senate is an antidote developed by experience in the actual processes of the parliamentary operations in the Senate. (CR, 1917b, p. 26)
Calling the cloture motion proposal "another reactionary movement masquerading in the name of reform," Sherman argued that an elimination of the filibuster goes directly against the constitutional principles upon which the Senate as a body was formed. The filibuster was cast as the only means by which the Constitution could be protected.
Robert La Follette, still a defender of the filibuster in the face of enormous opposition, argued on much the same principles and even identified the use of the filibuster as a constitutional right:
"under the Constitution of our country and the rules as they stand to day, the constitutional right is reposed in a Member of this body to halt a Congress or a session on a piece of legislation which may undermine the liberties of the people and be in violation of the Constitution which Senators have sworn to support. When you take that power away from the Members of this body, you let loose in a democracy forces that in the end will be heard elsewhere, if not here" (CR, 1917b, p. 41).
La Follette's defense of the filibuster is especially noteworthy and may appear contradictory given that the Wisconsin Republican was one of the most celebrated progressives throughout this era, serving as everything from a Progressive Party presidential candidate to the publisher and namesake of a leading progressive magazine. La Follette's support for the filibuster stemmed largely from the aforementioned progressive mistrust of an overpowerful executive. Belle La Follette explains Senator La Follette's "profound conviction that 'representative government depends upon the direct responsibility of the representative, not to the President, but to the people,' and that any 'abject surrender of the legislative to the executive will,' would in the long run result in the loss of fundamental democracy" (p. 626). This was the case with the Armed Ship bill as La Follette was convinced the public did not have time to understand the consequences of the bill: namely, that it would lead the U.S. into war. La Follette rightfully noted that only a year before, Wilson was elected president in large measure because of his promise to keep the U.S. out of the war. La Follette believed that despite the current passions, the true will of the people remained neutrality. The filibuster was often used by progressive Senators on similar grounds, a point highlighting the fact that progressivism and the filibuster were not in mutually exclusive domains. In the discourse surrounding the filibuster debates, however, they most often lined up at opposite ends of the mythological continuum.
With the Armed Ship bill still fresh in his mind, La Follette argued that the "liberties" of the people, especially against the "organized power" of the executive, could only be truly ensured by the filibuster upheld by the constitution. He argued not only against executive power, but also against the dangerous "forces let loose in a democracy" that needed to be held in check by the power of the filibuster. In contrast to Wilson and other opponents of the filibuster who saw liberty as ensured by acting on majority opinion, La Follette saw the protection of liberty as a consequence of adherence to the constitution and protection of minority rights. Whether the "organized power" was an overzealous executive or the temporary and changeable passions of the public, individual liberty could only be ensured through the "filter" of representative government known as the filibuster.
The Federalist Constitution was created precisely toward these ends, and the filibuster, while not explicitly laid out in the Constitution, becomes in the Senate the means to reach such ends. The filibuster simultaneously encapsulates the principles of The Constitution while standing in the way of Democracy. Rhetorically, however, the distinction between means and ends is symbolically metonymized, and the filibuster in essence becomes the Constitution.
Harvey Mansfield, in his book America's Constitutional Soul, highlights how the foundations of Progressivism during this time period were in direct confrontation with the Constitution. In the process, Mansfield inadvertently captures the essence of the debate over the filibuster throughout history, and posits Wilson as the first to articulate rhetorical contestations to the Constitution itself:
Woodrow Wilson, perhaps the most powerful intellect in the [progressive] movement, was the first American president to criticize the Constitution . . . it was a Newtonian mechanism intended to work by action and counteraction, not meant to get anywhere, not meant to make progress. . . . Left to itself, the Constitution brings stalemate or deadlock. (pp. 5-6)
Within the confines of the Senate, the debate over the filibuster became a debate over the correct interpretation of the Constitution as a prescriptive document for American governance. The most salient of rhetorical themes during this period allowed for the aforementioned equation of the filibuster and the Constitution.
The success of Wilson's attack on the filibuster ensured some form of cloture would be established, and some saw the public outcry that was clearly hanging over the Senate, and to which many Senators explicitly referred, as an opportunity to establish cloture by mere majority rule. The point was stated most clearly by Senator Charles Thomas of Colorado. Thomas said the Senate had "presented to us, because of the developments . . . which may never recur, and the aroused public opinion upon the subject, a rare opportunity to amend the rules and establish cloture by majority. If we are to let it pass by the enactment of this rule, which will bring no real measure of relief, we shall regret it very soon. This rule, requiring a two thirds vote for its recognition, can not be obtained in most instances, perhaps in very few" (CR, 1917b, p. 33).
A proposal to establish cloture by majority, however, lacked significant support among Senators because the pending measure, offered by Senator Thomas S. Martin of Virginia, was much more moderate and allowed them the opportunity to respond to public pressure while maintaining the constitutional principles of the Senate filibuster. All but three Senators voted for the Martin measure. The motion read:
If at any time a motion, signed by 16 Senators, to bring to a close the debate upon any pending measure is presented to the Senate . . . and if that question shall be decided in the affirmative by a two-thirds vote of those voting . . . thereafter no Senator shall be entitled to speak in all more than one hour on the pending measure . . . no amendment shall be in order after the vote to bring the debate to a close. (CR, 1917b, p. 19)
Only La Follette, Sherman, and Asle Gronna of North Dakota voted against this cloture motion. However many Senators, such as Thomas Hardwick of Georgia, expressed a reluctance to vote for any far-reaching measure: "I can not help but feel reluctant to go even this far with you, Senators, when Senators are openly asserting that this is but the entering wedge; when Senators are telling me, even are saying in my presence, that this is merely the beginning of the end. I fear so, and yet I hope not" (CR, 1917b, p. 35).
Senator Thomas Townsend best exemplified the prevailing view among the majority of Senators in the 1917 debate. He bridged the gap between the arguments based on the mythology of Democracy and those of The Constitution. Townsend, in announcing that he would reluctantly support the cloture rule only because "it is not very radical," said "I have realized . . . for some time that there was to be a change in the rules. Illy informed public sentiment has seemed to demand it, and too many legislators are more busy listening to supposed public sentiment than they are in trying to properly inform that sentiment" (CR, 1917b, p. 36).
The role of Senators in upholding the Constitution, yet necessarily acceding to direct democracy at times, led to a vote for some form of cloture so that the Senate could proceed with the nation's business. Townsend abandoned his constitutional "filtering" role of "properly informing public sentiment" and gave credence to what he himself deemed "illy informed public sentiment." Townsend's admission may also provide evidence that other Senators, including progressives, would have supported the filibuster if they possessed La Follette's resolve in the face of strong oppositional public sentiment. In the battle between direct democracy and republican representative democracy, however, the general public essentially forced a change in Senate rules.
Beginning with the first cloture rule in 1917, only 4 years after the passage of the Seventeenth Amendment through the debate in 1995, the rhetorical constructions indicate more than an arcane procedural debate. Though several specific revisions to the rule have been enacted over the years, the debate over the filibuster is largely the same debate that took place at the Constitutional Convention. Such debates exemplify the warring factions of political theory which have consistently been a large part of American political mythology since 1789. In an effort to determine the extent to which American political mythology remains consistent today, I now turn to the most recent debate on the first day of the 104th Congress.
LIVERALIZING CLOTURE - THE DEBATE OF 1995
The present cloture rule in the Senate was adopted in 1975, and allows cloture to be invoked by three-fifths of Senators duly chosen and sworn, or 60 votes. However, the Senate also now works under a two-track system of filibusters, which allows the Senate to turn its consideration to other legislative matters while the majority attempt to gain the 60 votes necessary to invoke cloture. Unlike in years past, where Senators were required to physically hold the floor and literally "talk a bill to death," the two-track system allows Senators to block measures without holding up all Senate business and without the necessity of actually staging a filibuster on the floor. Thus, what was once a very public tactic used only in rare occasions on issues about which Senators held passionate feelings and/or for which there was significant public support, the filibuster is often now a quiet, behind-the-scenes way of holding back any or all legislation. The filibuster now requires only enough commitment to utter a simple objection on a "motion to proceed," causing a dramatic increase in the amount of so-called filibusters used in recent years. Opponents of the filibuster rightfully argue that the current use has the effect of requiring a de facto super-majority, or 60 votes, to pass most legislation.
Senator Tom Harkin, a self-proclaimed "prairie populist," introduced a measure to curtail the power of the filibuster on the first day of the 104th Congress. Harkin, claiming to be responsive to "the will of the people" to "get anything done at all here in Washington," said "I think it is time to let the voters know that we heard their message in the last election" (CR, 1995a, S30-S31). Harkin wanted to act as the messenger from the people and claimed that the Senate should follow along in that mirror image. Sounding similar to a progressive era muckracker attacking the arrogance, privilege and elitism of government officials, Harkin attacked the Senate in general as an aristocratic body concerned with personal power: "I believe each Senator needs to give up a little of our pride, a little of our prerogatives, . . . and a little of our power for the good of this country. Let me repeat that: Each Senator, I believe, has to give up a little of our pride, a little of our prerogatives, and a little of our power for the better functioning of this body and for the good of our country" (CR, 1995a, S31). From the beginning of the 1995 debate, Harkin attempted to frame the issue as the will of the people as indicated by the latest election results versus the power of an elitist government in the Senate.
Opponents of the filibuster such as Harkin have relied historically on the political mythology of Democracy, holding the Senate in contempt for stifling direct democracy and the will of the people. Throughout the 1995 debate, the filibuster was portrayed by Harkin as a "dinosaur of ancient times." Harkin argued the Senate needs to press on with the business of the American people by liberalizing the cloture rule: "It is time to move ahead with the people's business in a productive manner" (CR 1995b, S431). Harkin asked "will we heed what the voters have said, that they want this place to change? That they want us to be more productive. Or is it going to be 'business as usual'. . . . So, the first vote of this session, are we for change? Or are we for the status quo?" (CR 1995b, S431), "Change," as the buzzword of the contemporary political culture, resonates with an American public that is never wholly convinced that America is progressing quickly enough toward an earthly utopia.
While Harkin and the opponents of the filibuster clearly drew upon the rhetorical themes of the mythology of Democracy as progress, direct democracy, etc. - they nonetheless appreciate the power of constitutional mythology and thereby claimed the Harkin proposal was only a modest change in Senate rules. Harkin said his proposal upholds Senate tradition and "embrace[s] the vision of this body that our Founding Fathers had" (CR 1995a, S31) of the more deliberative body. Harkin's proposal allowed cloture to be invoked by a sliding number of votes over a succession of cloture motions. That is, the first cloture motion would require the current 60 votes, the second would require 57 votes, then 54, and finally a simple majority of 51 would be required to invoke cloture. Given cloture motions can take no less than three legislative days by Senate rules, the process by which cloture could be invoked by simple majority would take a matter of weeks rather than hours or days.
In straddling the line between the importance of the constitutional principles embodied by the filibuster and the pragmatic need to get things done, Harkin argued from what might be called a constitutionally supportive position using a narrative from the Anti-Federalist aligned Thomas Jefferson. Harkin told the following anecdote to bridge the gap between competing mythologies:
[Jefferson] had learned that the Constitutional Convention had set up a separate body called the U.S. Senate, with its Members appointed by the legislatures and not subject to a popular vote. Jefferson was quite upset about this. He asked George Washington why this was done. Evidently, they were sitting at a breakfast table. Washington said to him, "well, why did you pour your coffee in the saucer?" And Jefferson replied "why, to cool it, of course." Washington replied, "Just so: We created the Senate to cool down the legislation that may come from the House." I think General Washington was very wise. I think our Founding Fathers were very wise to create this body. They had seen what had happened in Europe - violent changes, rapid changes, mob rule - so they wanted the process to slow things down, to deliberate a little more, and that is why the Senate was set up. But George Washington did not compare the Senate to throwing the coffee pot out the window. (CR, 1995a, S31)
The narrative, though quite likely apocryphal, positions Harkin and the opponents of the filibuster with Jeffersonian democracy while acknowledging and appreciating the constitutionalist argument. In an attempt to envelop deliberation, as an original tenet of the constitutional mythology, into his own view of Democracy, Harkin endorsed what may be seen as the filter of representation as long as the filter does not completely clog the process. Such an attempted transformation of the mythology of The Constitution is invited by the ambiguity inherent to any rhetorical/symbolic form. Thus, the question within public argument is most often not which mythology to choose in a given rhetorical context, but how to transform the ambiguity inherent to any symbolic construction into one's rhetorical advantage by articulating how the two complement one another at a particular point along the continuum.
The main opponent to Harkin's measure was Senator Robert Byrd of West Virginia. First elected to the Senate in 1958, Byrd is almost unanimously regarded within the Senate as the foremost expert of Senate rules and procedures, including the filibuster. A former Majority Leader, Minority Leader, and author of a two-volume treatise on the history of the Senate and its rules, Byrd's credibility on the issue is surpassed only by the length of his floor speeches on Senate history. Byrd denounced Harkin's impulsive populism and invoked the Framers of the Constitution: "The filibuster has become a target for rebuke in this efficiency- obsessed age in which we live. We have instant coffee, instant potatoes to mix, instant this and instant that. So everything must be done in an instant; must be done in a hurry. . . . We have to bring efficiency to this Senate. That was not what the Framers had in mind" (CR, 1995a, S40-41).
Byrd candidly positioned himself against a direct democracy of the American public and in favor of the Federalist Constitution and a Senate that privileges the filtering role of representatives within a republic: "With 260 million people, would anybody stand up and claim that this could be a democracy? This is a Republic. It is a representative democracy. The people speak through their elected representatives" (CR, 1995a, S40).
If Harkin was the voice of the people and of the mythology of Democracy throughout the debate over the filibuster, Byrd continually represented the voice of history and The Constitution. For every populist sentiment expressed by Harkin, Byrd appealed to the pride Americans, and Senators, feel toward the Constitution and the Senate: ". . . it is not a matter of power and privilege and prerogative, as the Senator has said, and pride. It is a matter of pride in this institution . . . and pride in the Constitution" (CR, 1995a, S42).
Harkin, reading from a number of newspaper editorials and invoking the "scientific proof" of the people's will, offered his colleagues the information that a recent public opinion poll indicates "80 percent of Independents, 84 percent of Democrats, and 79 percent of Republicans believe that once all Senators have been able to express their views, the Senate should be permitted to vote for or against a bill" (CR, 1995a, S32). Such "proof" of the American public's opinion - and the intimation that Senators should heed that opinion - exemplifies the extent to which the late 20th century political culture of public opinion polling fits quite nicely within the age-old political mythology of pure democracy.
What Harkin failed to understand, however, is that such polling information makes little difference to many of his opponents who see their role in the Senate as more than mirroring the wishes of their constituency. While others Senators were less candid, Byrd expressed the belief that their position affords them a responsibility to filter the public's beliefs through hierarchies of government: "You take away my right of freedom of debate as an elected representative of the people, and you take away their liberties" (Emphasis added, CR, 1995a, S42).
Just as Harkin had to acknowledge the deliberative role of the Senate, Byrd was forced to accept the virtues of "change," claiming "I am not unalterably against change if it is change for what I see would be for the better," but will stand against "emasculating the filibuster rule" no matter what the results of the latest public opinion poll (CR, 1995a, S42). Another opponent of Harkin's measure, Senator Carl Levin of Michigan, acknowledged the abuse of the filibuster, but maintained "we must be very careful not to discard the baby with the bathwater," insisting that the filibuster assures "that matters of great consequence cannot be rammed through by a majority even if backed by the currents of sometimes changeable public passion" (CR, 1995b, S438).
The ambiguity inherent to any political mythology, and the attempt by rhetors to transform that mythology to their own ends, was never more evident in the filibuster debate than when attention turned to the rights and sovereignty of the states. The belief in states rights as an important part of American democracy was originally tied to notions of a small, localized government and the maintenance of liberty through the direct participation of the citizen farmer. In an ironic transformation, however, the Anti-Federalists' ability to secure equal representation in the Senate in 1789 has become enveloped into the contemporary mythology of The Constitution and thus allows supporters of the filibuster to argue on behalf of Anti-Federalist principles. Byrd relied on the rhetorical salience of what was an originally Anti-Federalist principle: "I may want to use [the filibuster! someday to protect poor little West Virginia and her rights. This is the forum of the States. We are here to represent States. And the State of West Virginia, the State of Iowa, the State of Kentucky, the State of Mississippi, each of these States is equal to the great State of California with its 30-odd million - equal. We speak for the States, and it is the only forum in the Government in which the States are equally represented. Now, if we do not have the right for unlimited debate, these poor little old States like West Virginia, they will be trampled underfoot" (CR, 1995a, S40).
Similarly, when Harkin argued that the current use of the filibuster is a de facto imposition of majority rule (60 votes needed), he invoked the Federalist James Madison as supportive of a position against the filibuster. Harkin quoted from Federalist #58: "If more than a majority [were required! for a decision, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule. The power would be transferred to the minority" (CR, 1995, S435).
Harkin's use of Madison in this context is rhetorically powerful, yet theoretically somewhat problematic, because Madison was upholding basic principles of representative democracy which were used by Federalists to argue against the Anti-Federalist demand that representation be based on states. Minority control, in terms of actual representation of the body policy, is often the rule rather than the exception in the U.S. Senate. While Harkin forwarded mythological themes similar to Anti-Federalism throughout the debate, the openness of such symbols as "The Founding Fathers" and "James Madison" allowed Harkin to employ temporarily the principles of Federalism without question.
Throughout the filibuster debate, there was a certain rhetoric of the Senate by the Senate that honored the Senate as the upper chamber, the guardian against the illogical "whims" of the House, slowing down legislation as "it pours out like a fire hose from the House." Both sides of the debate agreed that the U.S. Senate is indeed the superior body and does not want to become "another House of Representatives." Proponents and opponents of the filibuster similarly agreed that the Senate is the "greatest deliberative body in the world" and that its history needs to be maintained.
Byrd typified this belief. He aligned the filibuster with the unique Constitutional role of the Senate in persuading his colleagues that they
must not forget that the right of extended, and even unlimited, debate is the main cornerstone of the Senate's uniqueness. It is also a primary reason that the United States Senate is the most powerful upper chamber in the world today. The occasional abuse of this right has been, at times, a painful side effect, but it never has been and never will be fatal to the overall public good in the long run. Without the right of unlimited debate, of course, there would be no filibusters, but there would also be no Senate, as we know it. The good outweighs the bad, even though they may have been exasperating, contentious, and perceived as iniquitous. Filibusters are necessary evil, which must be tolerated lest the Senate lose its special strength and become a mare [sic] appendage of the House of Representatives. (CR, 1995a, S44)
Despite numerous indications of an apparent atmosphere of support, including most of the nation's leading newspapers supporting Harkin's proposal, the measure was significantly defeated by a vote of 76 to 19. Given Harkin's numerous acknowledgements of the difficulty of cloture reform, and his promise that he would bring the measure up again even before the vote on the pending measure occurred, it is safe to assume that he and his supporters fully expected the measure to fail. Raising public interest and awareness of the filibuster issue may have been Harkin's largest goal.
A bipartisan group of former Senators, elected officials, and interested citizens called "Action, Not Gridlock" have also organized around the country to lobby the Senate and increase public support for cloture reform. While Harkin's efforts went largely unnoticed next to the revolution across the hall in the House, an attempt to raise public awareness and public outcry about the filibuster may be the only way to achieve fundamental reform precisely because the Senate as a rhetorical forum necessarily favors the mythological tenets of The Constitution.
Here I follow the notion of rhetorical forum as set out by Thomas Farrell (1993) in The Norms of Rhetorical Culture. Farrell, expanding on Stephen Toulmin's concept of rhetorical forum, contends that discourse is always constrained by the specific context in which it occurs. Farrell's broad definition of a rhetorical forum as a "gathering place for discourse" (282) is intended to highlight how rhetorical forums in contemporary culture are more than the highly formalized and constraining gathering places such as the Senate floor. The Senate can be seen as a forum more aligned with Toulmin's model of highly formalized context constrained by rules and historical precedents. Within the debates over the filibuster, the rhetoric of the Senate by the Senate honors the Senate's unique constitutional role and places itself in a superior position over the House of Representatives as a "popular" body. Both sides of the debate agree and pay homage to a particular and specific definition of what the Senate as a legislative body is, thereby unintentionally agreeing to the particular and specific constraints placed upon their discourse by the Senate as a rhetorical forum. The common grounds from which both sides of the debate are working is always and already closer to The Constitution side of the mythological continuum than the Democracy side. The forum itself necessitates that Senators respect the institutional history and the unique constitutional role of the Senate as a legislative body. Thus, all arguments that emanate from that forum are necessarily imbued with constitutional colors. When one considers that the Constitution is symbolically conflated with the filibuster itself in the discourse of the debates, the impact is even stronger. The Senate as a forum necessitates that all arguments about the filibuster must acknowledge and respect the Senate as a superior body that is more deliberate and less responsive to the people than is the House of Representatives.
Making judgments about where the Senate should fall on the continuum between the political ideas and ideals inherent to the mythologies of Democracy and The Constitution is undoubtedly affected by the rhetorical grounds upon which one is standing. Arguments for cloture are going to be less salient in a forum comprised of the highly constraining features described above. Thus, Farrell's further development of rhetorical forums as "gathering places" constituted by actual "rhetorical practice" in a myriad of different "pockets" of culture, highlights the existence of many different forums that arise in generalized rhetorical culture. As Farrell states, rhetorical forums "range from the formal, traditionally stabilized forum to the extra-institutional, socially emergent forum" (p. 284). Separating the generalized political arena as the latter type of rhetorical forum which is undoubtedly more akin to the mythological tenets of Democracy from the U.S. Senate as an example of the former, more stabilized type of forum, may illuminate both how a cloture rule first came about in 1917 as well as how the filibuster has been able to survive largely intact since. Public pressures, or lack thereof, is a form of rhetorical pressure that has the ability to shift, or leave static, the rhetorical groundwork from which the Senate works.
We have seen how different political mythologies arose out of the constitutional convention and how, over time, they have come to be transformed and expanded. It is the open-ended, ambiguous quality of mythology that allow for this transformation and for rhetors as diverse as Tom Hayden, Tom Harkin, and Tom Jefferson to appeal to the same general set of mythical principles. As Kertzer claims: "The complexity and uncertainty of meaning of symbols are sources of their strength" (p. 11). Both sides of the debate appeal to both mythologies during the filibuster debate, claiming that they are representative of the true intent of the Framers; thus, they try to solidify the necessarily slippery mythology to their benefit.
Although the Senate filibuster is not explicitly protected by the Constitution, it is protected by what may be even more powerful - the symbolic power of representing many of the constitutional principles upon which the republic of the United States was founded. Throughout history, the Senate debates about the use, and misuse, of the filibuster have illuminated the extent to which this is true. In the process, these debates have sometimes brought to the forefront the lingering tenuous relationship Americans have with the Constitution: we valorize the Constitution in the same way we valorize democracy - never recognizing the conflict between the two. This is a conflict that was at the heart of the Constitutional Convention in 1789 and has been similarly existent throughout American political history.
In the current political culture, "technodemocracy" has been the cry of many - a movement enabled by sophisticated technological development toward a direct democracy of the people lined up in town halls armed with an "on-line" circumvention of representative democracy. In the last presidential election, Ross Perot managed to gain 19 percent of the popular vote (despite enormous problems throughout the campaign which sapped his original support) in large part because of his populist can-do spirit appealed to the American public and because of the promise that he would serve as little more than a conduit for the voice of the people.
The contemporary news media's increased reliance on opinion polls for public policy issues has forced elected officials to confront the "mirror" vs. "filter" debate on almost every vote cast; very seldom does one see a public official who votes against public opinion claim his or her status as a filtering elite. Yet what most observers see as a direct affront to democracy - the filibuster - remains alive in the Senate.
Those opposing the filibuster today, even within the Senate, by their own admission do so because of the increased use of obstructionist strategies in recent years and the claim that the public's perception of Congress is damaged by such tactics. Harkin claims the 103rd Congress saw twice as many "filibusters" as the entire 19th century. Other statistics indicate that the use of filibuster has increased dramatically even over the last 10 years. The current use of "holds" where one or two Senators are allowed to block measures in order to gain an advantage on some other issue is clearly abusive and can be remedied without eliminating the filibuster.
Under the two-track system, Senators are also not held publicly accountable for their positions and the practice of filibustering becomes an all-too-powerful obstructionist tool. In contrast to years past, when to stage a filibuster meant a pronounced entrance into the arena of public deliberation, today's use of the parliamentary procedure allows publicly indefensible positions the institutional cover of being known only by a select few. But such strategies are not classic filibusters. In fact, there are now very few, if any, extended filibusters through actual speeches and continuous debate on the floor of the Senate.
To react against the abusive tactics of miniscule minorities by liberalizing the cloture role trivializes the constitutional importance of the Senate filibuster and threatens the legitimate protection of minority rights. Returning the filibuster to its classic model of requiring continuous debate day and night would ensure that only the most legitimate minority concerns were validated by the entire Senate. With C-SPAN coverage of the Senate and constant media attention today, Senators would scarcely follow in the footsteps of Senator Huey P. Long of Louisiana by spending 8 hours of Senate floor time reading recipes for collard greens, unless they knew their position had significant public support or were confident that such support could be achieved by articulating their position in the public arena.
A return to the classical filibuster would create a forum in which minority concerns could receive greater articulation and media coverage. Such a return would also serve the interests of those who oppose the filibuster by allowing an opportunity for the practice to be played out in a public arena, and a rhetorical forum, more amicable to direct democracy than is the Senate itself. Increased public awareness may or may not load to public support for cloture reform, but increased public scrutiny would most assuredly alleviate current abuses of the system by focusing attention on the specific uses and Senators' reasons for engaging in a filibuster rather than simply decrying the rule as an obstructionist weapon. As Franklin Burdette says of the filibuster: "Obstruction is a weapon, and like all weapons it is dangerous. Yet in the lives of nations as of men there are times when weapons are a safeguard, and it is indeed a high degree of civilization in which they are useless" (p. 9).
The modern spectacle of a classic filibuster may also bring to the fore a public discussion highlighting the contradictions in American political mythology between Democracy and The Constitution and how those contradictions transcend rhetorical invention to communicate something about the difficulties inherent to any system of government. It may also draw attention to the fact that our idea of democracy is not always evident in our form of democracy, and that the consequent frustration Americans feel with their government in 1996 is at least in part the desired consequence of the "experiment" that took place in Philadelphia so long ago.
1 The "previous question" is roughly speaking the parliamentary procedure by which debate can be cut off and a vote on the pending measure required. This is the method by which debate is cut off in the House of Representatives today. Ironically, when Senate rules were codified in 1806, the "previous question" was eliminated because it was thought to be unnecessary (See Beeman, p 421; Byrd, p. 115).
2 See Byrd 1989, pp. 114-134, for a review of these debates.
3 While I have attempted to show the general derivation of the symbolic forms which comprise these mythologies, it should be clear that I am not contending a complete, direct lineage from previous forms of thought.
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Troy A. Murphy is a Teaching Fellow in the Department of Rhetoric and Communication at the University of Pittsburgh
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|Title Annotation:||Special Issue: Argumentation and the U.S. Senate|
|Author:||Murphy, Troy A.|
|Publication:||Argumentation and Advocacy|
|Date:||Sep 22, 1995|
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