Sam Uretsky

Filibuster No Laughing Matter

As any fan of Gilbert & Sullivan knows, the line comes near the end of the second act of The Mikado, just before the finale. Koko says to the Mikado “... Your Majesty says ‘Kill a gentleman,’ and a gentleman is told off to be killed. Consequently, that gentleman is as good as dead — practically, he is dead — and if he is dead, why not say so?” The Mikado replies “I see. Nothing could possibly be more satisfactory!” and everybody sings and dances. That’s one of the best examples of Gilbertian logic, which has been described as “wildly comic and improbable.” Of course the same reasoning seems to apply to the Senate of the United States, without the happy endings.

The Filibuster, the method of stopping the work of the Senate by holding the floor, has been one of the hallowed traditions of the Senate. When President Lincoln issued an executive order suspending habeas corpus, Sen. Willard Saulsbury (D-Del.) attempted a filibuster, which included what John Hay described as “language fit only for a drunken fishwife.” When the Sergeant-at-Arms attempted to restrain the Distinguished Gentleman from Delaware, Sen. Saulsbury pulled a gun and threatened to shoot. He didn’t, and was escorted off the floor.

In 1908, Sen. Robert La Follette (R-Wis.) carried on a filibuster over a currency bill. For nourishment, he relied on glasses of milk and eggs, supplied by the Senate Restaurant. His filibuster was cut short by food poisoning. Louisiana’s Huey Long managed 15-1/2 hours including recipes for oysters and notes on the life of Frederick the Great. Strom Thurmond (at the time D-S.C.) set the record at 24 hours and 18 minutes. On Nov. 19, 2003, Harry Reid (yes, that Harry Reid) discussed on the virtues of wooden matches and read chapters from his own book about his hometown, Searchlight: the Camp that Didn’t Fail. Sen. Reid only lasted 9 hours.

The filibuster is not all bad. In 2005, former New York Gov. Mario Cuomo called the filibuster “a vital part of the 200-year-old system of checks and balances in the Senate.” It’s a legitimate protection for minorities, and, during the Bush administration, it was sometimes reassuring to know that bills which had passed the House would be blocked by the more deliberative Senate. The distinction is that under the current system, all a Senator has to do is say “I plan to filibuster” and the bill is as good as filibustered — practically it is filibustered — and if it is filibustered, why not say so? Given the record of consistency of most politicians, it’s not clear that a threat to filibuster should be accepted at face value, but that has become the general practice.

Whether rules that permit a lone senator to block a bill or a judicial nomination are good or bad depend on whether your side is in the majority. Still, UCLA Professor Barbara Sinclair, in Congress Reconsidered, 9th ed. (L.C. Dodd and B.I. Oppenheimer, eds., CQ Press, 2009) in the 1960s, “extended-debate-related problems” — threatened or actual filibusters — affected only 8% of major legislation. By the 1980s, that had risen to 27%. But, since 2006, when the Democrats regained the congressional majority, the total is up to 70%. At that rate, Motherhood might get through the Senate, but a vote on apple pie could be held up over whether it should have a crumb topping or a lattice crust.

Until 1917, there was no way to end a Senate debate, but that year, a debate over the arming of merchant ships led to an agreement that a two-thirds vote would block discussion. Two-thirds was asking too much and in 1975, the rule was changed to three-fifths, or the current 60 votes. At the time, the rule change was supported by liberal Democrats and the now near- extinct species, moderate Republicans. Again, whether the ability to block legislation is good or bad depends on the results of the last election.

One possible approach to preserving the rights of the minority without the current abuses would be to go back to the original form, allow the filibuster, but discard the Gilbertian agreement that a threatened filibuster counts as the real thing. Any senator can block a vote, but has to do it actively, with C-SPAN covering the entire event. Making a filibuster that much less convenient might make it a bit less common, and offer more transparency into government. The homage to Sir William S. Gilbert is appreciated, but unlike the Savoy Operas, what we have now really isn’t funny.

Sam Uretsky is a writer and pharmacist living on Long Island, N.Y.

From The Progressive Populist, Febuary 1, 2010

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