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It's not 'Mr. Smith Goes to Washington.'(Senate filibusters)

The Lady Vanished.... "I object," was all she said before she turned and strode through the swinging doors. Senate Democratic Leader Tom Daschle called out to the lady, Senator Kay Bailey Hutchison: "Would the senator from Texas wish to state her reason for the objection? Mr. President, could we get the attention of the senator from Texas?" But she was gone.

Such is the fashion of the filibuster in the modern Senate. No longer does a senator hold the floor in long, impassioned debate, as in the film Mr. Smith Goes to Washington. Now legislators log their filibusters with the leadership, and the Senate pretends to hold them. A senator doesn't even need to attend her own filibuster. Her party handles it for her.

It used to be more like the movies. Senators delivered seemingly interminable speeches. They taxed their stamina to the limit. They employed clever means to sustain themselves for long periods during which they could neither eat nor withdraw to answer nature's call.

The indefatigable Senator Strom Thurmond holds the record. In August 1957, he addressed the Senate for 24 hours and 18 minutes in an effort to halt the advance of civil rights for African Americans. Running a close second, Senator Wayne Morse held the floor for over 22 hours fighting the Tidelands oil bill in 1953. Senator Robert La Follette Sr. spent almost 19 hours on his feet battling the Aldrich-Vreeland currency bill in 1908.

These somnolent soliloquies earned the Senate a reputation as a tiring place. Former Dean of the House of Representatives Jamie Whitten told how, in the wee hours of the morning, Senator Homer Ferguson once confessed, "Jamie, there are only two ways our Senate can act, either by unanimous consent or exhaustion."

The record for the longest speech of recent years belongs to Senator Alfonse D'Amato of New York, who held up a tax bill in October 1992 in a vain bid to save jobs at a Cortland, N. Y., typewriter factory. But Senator D'Amato's election-year filibuster had more to do with showmanship than legislation. His performance included singing selections from "Deep in the Heart of Texas" (for the benefit of Finance Committee Chairman Lloyd Bentsen, who just wanted to finish his tax bill) and "South of the Border" (where the typewriter jobs seemed headed). Alessandra Stanley of The New York Times placed it "somewhere between Jimmy Stewart taking on the capital and the final moments of the 'Jerry Lewis Telethon."'

Senator D'Amato's musical revue was the exception to the modern rule. More and more frequently, senators are forgoing the traditional practice of personally holding the floor to delay a vote. Now, senators simply register with their party leader, usually by letter, their objections to the Senate's proceeding to a matter. This objection--called "a hold"--implies the threat of a filibuster should the Senate take up the disputed matter. With the leadership honoring her hold, a senator can be assured that action on the disputed matter will be slowed--even in the senator's absence. The majority leader reserves the right to force a senator to come down to the Senate floor and object in person, as Majority Leader Trent Lott obliged Senator Hutchison to do on the occasion just related. But once Senator Hutchison registered her objection, she felt entirely secure exiting the chamber, relying on her leader to protect her rights--in this instance, to block the confirmation of a district court judge in Minnesota.

Of course, by choosing not to hold the floor themselves, senators lose some of their influence over the process. In honoring a hold, the party leadership agrees to slow a disputed matter from coming to the floor, but its overriding concerns remain to advance the party's general interests and to prevent the legislative process from grinding to a halt. (In Hutchison's case, the Senate went on to confirm the nominee.) If the disputed matter affects only one region or interest group, the party may not do much to protect an individual senator. In such instances, the affected legislators may have to resort to a full-fledged filibuster, as Senators Harry Reid and Richard Bryan of Nevada did in opposing legislation to locate a nuclear waste dump in their state. Still, more and more frequently, senators seem content to sacrifice a little control for convenience.

Stand and Deliver

When senators felt compelled to stand and deliver their demurrals, they tended to reserve the filibuster for a deeply held belief. But the modern filibuster, what Senate Parliamentarian Bob Dove calls "the gentleman's filibuster," involves so little inconvenience to individual senators that they use it for everything. Now, minor policy disputes readily escalate into filibusters requiring a vote of cloture, creating what Dove calls the "60-vote Senate": Any matter about which senators hold any feelings winds up requiring a supermajority of votes. As then-Senator Dan Quayle complained to Congressional Quarterly in 1987, the Senate has "trivialized" the filibuster.

Ending debate by a vote of cloture has also become less cumbersome. To make the trains run on time, in 1975, then-Majority Whip Robert Byrd pushed through a change in the filibuster rule, reducing the two-thirds vote requirement to a vote of 60 senators. Not surprisingly, the leadership began invoking cloture more frequently. Whereas the Senate conducted 45 roll-call votes on cloture in the entire halfcentury from 1919 to 1969, it conducted 99 in the 1970s and 138 in the 1980s. Already, 168 have been conducted in the 1990s. This increase has not gone unnoticed by legislators. Back in 1984, a select committee on procedure chaired by then-Senator Quayle concluded: "Cloture is not only invoked too often, it is invoked too soon."

At this point, the Senate rarely even bothers with the formal cloture procedure, which allows debate on a disputed bill to continue for 30 hours after the cloture is invoked. Instead, the Senate usually agrees by unanimous consent to hold the final vote at the time convenient to the largest number of senators. Why debate all night when you can not debate and say you did?

This no-fuss objection process has become a favorite tool for partisan disruption. This summer, the minimum wage bill, a gas-tax repeal, the health insurance bill. and a small business tax cut bill were all locked together for a time like so many scorpions in a death grip of objections. During the previous Congress, Republicans successfully employed filibusters to block several Clinton initiatives, notably campaign finance and health care reform. Democrats tried the same in the 1980s.

This being an election year, the threat of filibusters has been especially popular in putting the brakes on the confirmation of judges and other appointed officials. No majority leader wants to spend the several days that calling a senator's bluff--or enduring an actual filibuster--would take simply to confirm a judge, especially one nominated by the president of another party. In effect, the Senate has raised the bar for appointment to many high offices to near unanimous approval from a club that includes--truth to tell--at least a few eccentric members. To his credit, Majority Leader Lott tried to march the Senate through a number of nominations, but occasionally ran into resistance, as with Senator Hutchison.

The ever-present threat of a filibuster does have an upside. At times, the intimation of such a delay is enough to get people talking. This summer, Senator Ted Kennedy used the threat of a filibuster to alter the Kennedy-Kassebaum health insurance bill. Making only a few explanatory speeches of reasonable length, and with the cooperation of his party's leadership, Senator Kennedy held up the appointment of conferees in order to negotiate differences between the House and Senate bills. He thus extracted from the Republican leadership a commitment that the final bill would contain a much more modest experiment on tax-subsidized medical savings accounts than Republicans wanted.

Still, the filibuster madness often frustrates senators. In mid-July, Majority Leader Lott complained bitterly at his news briefings of "slow-rolling gridlock" and "absolute gridlock" This increased frustration further erodes the Senate's storied comity. Perceiving less comity, a senator is more likely to throw a filibuster into the works of another senator's legislative dream. And so the Senate descends into a spiral of bitterness.

Frequent filibustering also frustrates voters. The 60-vote Senate has sapped the effectiveness of even relatively strong majority leaders like Bob Dole, Robert Byrd, and George Mitchell. When the Senate cannot enact the majority party's legislative agenda, the public questions the majority's competence or--worse yet--its sincere desire to get anything done. Without the accompanying oratories of explanation, the delays caused by gentleman's filibusters can seem pointlessly disruptive to the general public, and the Senate's workings become even less understandable to observers (which, thanks to C-Span, constitute more and more Americans). The public's cynicism grows because of the incomprehensible nature of the legislative process.

Cloture Clots

Several legislators have proposed changing the system. Senator Ron Wyden has made the modest proposal that senators be required to publicly acknowledge the holds they place. Majority Leader Lott is considering the proposal, but don't hold your breath.

Senator Quayle's 1984 committee recommended making it possible to end a filibuster simply on the motion to proceed. The 1993 Joint Committee on the Organization of Congress endorsed the proposal, but it went nowhere.

Calling filibusters "a process that is out of control," Senator Tom Harkin of Iowa proposed a sliding-scale cloture rule not unlike the pricing practices at clothing stores. The longer the Senate stayed on a matter, the fewer votes cloture would require. The Senate rejected Senator Harkin's amendment by a 76-to-19 vote.

The change most likely to curb the filibuster is the expansion of the budget process. Early in the 1980s and again this year, the majority stretched the budget process--which has time limits and thus immunity from filibustering--to cover nonbudgetary matters. That's how Congress enacted a Republican-leaning welfare reform bill this year. And this year's budget blueprint contemplated using the fast-track budget process for tax cuts.

While aimed at curbing abuses, these incursions on the filibuster threaten an important tool. For all its inconveniences, the filibuster serves useful purposes. Most significantly, it empowers organized minority parties and coalitions. Senator Byrd, who has stood on both the giving and receiving end of many a filibuster, writes in his Senate history:

The Senate is the only forum in the government

where the perfection of laws may be unhurried and

where controversial decisions may be hammered out on

the anvil of lengthy debate. The liberties of a free

people will always be safe where a forum exists in

which open and unlimited debate is allowed.

Maybe what we need is more debate, not less. Bring the decision making out of the back rooms and onto the Senate floor. Let the public see what all the deliberations and delays are about. Senators should be compelled once more to stand up, literally, for their convictions. Organized minorities certainly deserve a forum for objections, but the process should not be so simple it invites abuse. As with any freedom, misuse will lead to frustration and anger, resulting in misguided "reforms" that endanger the freedom itself. And senators' freedom to filibuster may at times preserve freedoms for us all.

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Author:Dauster, Bill
Publication:Washington Monthly
Date:Nov 1, 1996
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