David Randolph Smith

Mr. Frist Goes to Washington: The Filibuster Debate

Senator Bill Frist (R. Tenn.) wants to change a nearly 200 year-old Senate tradition: the filibuster and Senate rules on "cloture." Upset that Senate Democrats have thwarted certain of President Bush's conservative (and in one case unlicensed) judicial nominees, Frist has proposed that the rules for closing debate in the Senate ("cloture") be changed from 60 votes to a 51 votes. Although Frist and the Republicans have repeatedly argued that the filibuster has not been used, historically, against judicial nominees, that claim is patently false as John Dean explained in a recent FindLaw opinion piece. Moreover, according to the well-publicized finding by law professor Herman Schwartz, in March 2000, Majority Leader Frist himself participated in the filibuster against Clinton judicial nominee Richard Paez. Given that federal judges have lifetime tenure (and are "above the fray" of democratic/majoritarian politics) a super-majority actually makes more sense when applied to judicial nominees.

Frist is being opposed in his effort to re-write Senate rules on the filibuster by, among many others, West Virginia Senator Robert Byrd. See Master of Senate's Ways Still Parries in His Twilight (New York Times, 4/3/05. Listen to Senator Robert Byrd's Speech Against Changing the Filibuster Rule

Frist's sea-change proposal and newly found interest in constitutional theory and majoritarian principles is bemusing (if not infuriating) coming from a man who wasn't even registered to vote when he decided to go to Washington and run for the Tennessee Senate seat held by Jim Sasser.

Senator Frist needs a history lesson and a movie pass. First the history lesson. Article I, Section 5 of the U.S. Constitution empowers the Senate to “determine the Rule of its Proceedings.” The Senate eliminated the "previous question motion" in 1806 opening the rules to "unlimited floor debate." The first Senate filibusters began in the 1830s in disputes over the Bank of the United States. Senator Thomas Hart Benton records that Andrew Jackson’s supporters prepared for a long night, “fortif[ying] themselves with an ample supply, ready in a nearby committee room, of cold hams, turkeys, beef, pickles, wines,and cups of hot coffee'" in a filibuster over retracting a censure against President Jackson for removing deposits from the Bank of the United States. Thomas H. Benton, Thirty Years’ View 727 (New York, D. Appleton & Co. 1854-1856). A law review article by Martin Gold and Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster 28 Harvard Journal of Law & Public Policy 205 notes:

  • On June 21, 1841, Whig Senator Henry Clay (W-KY) reported a Fiscal Bank Bill to the Senate, designed to
    establish the National Bank that Andrew Jackson had thwarted. When Senator John Calhoun (D-SC) made it clear that the Democratic minority would not be rushed, Clay called for a revival of the previous question motion “to allow a majority to control the business of the Senate.” When Senator William King (D-AL) asked
    if Clay planned to introduce a gag measure, Clay retorted, “I will, sir; I will.” King made clear his intention to filibuster such a proposal: “I tell the Senator, then, that he may make his arrangements at his boarding house for the winter." At the insistence of his own party, which feared that a “gag measure” would lead to a break down in relations, Clay stood down. Clay agreed to compromise, and the bill passed the Senate on July 28. The practice of filibustering grew in the last half of the 19th century. Four times Senators unsuccessfully attempted filibuster reform—in 1850, 1873, and 1883 by moving to add a previous question motion to the Standing Rules,and in 1890 by attempting to create a cloture precedent through majority vote. It was not until 1917 that the Senate adopted a cloture rule [66 votes, a two-thirds majority].

The point: The filibuster rule has been part of Senate procedure (and America's history) for nearly 200 years and is consistent with the framers' vision of the Senate as the more deliberative body -- or, as Benjamin Franklin put it, the saucer where coffee can cool.It has been used throughout U.S. history for good and bad purposes. Huey Long led a three week filibuster against the Banking Acy in 1933. Wayne Morris spoke for nearly 22 hours in 1953 against the Tidelands Oil legislation. The single longerst filibuster record is held by Strom Thurmond (24 hours against Civil Rights legislation in 1957). Although the Senate has the constitutional power to change the rule to a simple majority to cut off debate, that truly would silence minority viewpoints and frustrate deliberative processes and compromise. It's bad policy to cram conservative judges down the throats of a divided Senate (and nation). That is why four moderate Republicans -- Sens. John McCain (Ariz.), Lincoln Chafee (R.I.), Susan Collins (Maine) and Olympia Snowe (Maine) -- have indicated they would not support such a proposal. Several other veteran senators -- including Ted Stevens (Alaska), John Warner (Va.) and Chuck Hagel (Neb.) -- have either declined to take a public stance on the issue or have questioned the need for such a dramatic change in the Senate rules.

Now the movie pass. Jimmy Stewart established himself as a leading actor in the classic 1939 Frank Capra film, Mr. Smith Goes to Washington. Its most memorable scene is when Stewart, as Senator Jefferson Smith, takes the Senate floor for a one-man filibuster (considered one of the virtuoso scenes of 1930s films). Senator Smith is filibustering in part to stall a vote that would oust him from the Senate. The President of the Senate recognizes Senator Smith as a voice from the gallery cries: "Let him speak!"Here is what Senator Jefferson Smith says:

  • ...I've got a few things I want to say to this body. I tried to say them once before and I got stopped colder than a mackeral. Well, I'd like to get them said this time, sir. And as a matter of fact, I'm not gonna leave this body until I do get them said.
  • No sir, I'm afraid not. No sir. I yielded the floor once before, if you can remember, and I was practically never heard of again. No sir. And we might as well all get together on this yielding business right off the bat now. (Laughter) Now, I had some pretty good coaching last night, and I find that if I yield only for a question or a point of order or a personal privilege, that I can hold this floor almost until doomsday. In other words, I've got a piece to speak, and blow hot or cold, I'm gonna speak it.
  • And I'll tell you one thing, that wild horses aren't gonna drag me off this floor until those people have heard everything I've got to say, even if it takes all winter.

The filibuster rule, like the two-thirds margin necessary for approval of amendments to the Constitution, is a rule designed to temper simple (simple-minded?) majorities. Get out the popcorn it's going to be a long fight.