June 22, 2018
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Living with Filibuster

Democrats have been impatient over the filibuster, as the Republicans have used it to delay and — they hoped — defeat the health care reform bill. But in 2005 a group of Republican senators plotted a “nuclear option” to derail a Democratic threat to filibuster some of President Bush’s judicial nominations, but they dropped the idea.

The plain fact is that both parties use the filibuster when it suits their strategies. Besides that, Senate rules make it practically impossible to rule it out. So, like it or not, the filibuster is going to be with us for a long time.

It’s an ancient device, dating back as far as 60 B.C., when the Roman senator Cato the Younger spoke long enough to block a plan to let Julius Caesar run for consul. Senate action was halted, but Caesar later won approval by the Tribal Assembly. In the British House of Commons, bills have often been “talked out” by extended debate.

In the United States, the House of Representatives long ago acted to control debate among its enlarging membership. In the Senate, a member at first could act to halt debate by moving “the previous question,” a motion requiring an immediate vote. When that rule was abandoned in 1806, the filibuster became an option for blocking floor votes.

Southern Democrats led a series of filibusters against civil rights legislation in the 1950s and 1960s. Speaking at great length, they sometimes used rubber bladders strapped to their legs so they could go on without trips to the restroom. Fellow senators would have cots brought into the chamber so that they could join the debate whenever needed. Sen. Strom Thurmond, a Democrat turned Republican, set a record by filibustering for 24 hours and 18 minutes the Civil Rights Act of 1957, which nonetheless eventually passed. Another unsuccessful filibuster of 75 hours tried to block the Civil Rights Act of 1964.

To keep Senate business moving, Sen. Robert Byrd devised a “tracking system” that allowed by agreement the majority leader to leave a disputed bill on the floor as unfinished business and proceed to other bills.

The system of “cloture” to limit debate originally required two-thirds of those voting. In 1975, the Senate adopted the present rule requiring a three-fifths vote of those sworn in, or 60 of the current 100 members.

Rule 22, which set up the current cloture procedure, would require a vote by two-thirds of the Senate to change its provisions. As Seth Lipsky notes in his new book, “The Citizen’s Constitution,” that two-thirds requirement is “even more than it takes to overcome the filibuster that would surely result were one party to try to amend this rule.”

So much for any objections to the filibuster. Cumbersome as it is, it looks here to stay.

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