With Filibuster in Danger, Unique Chapter of Senate History May Be Coming to a Close by David Tobenkin In Frank Capraís classic Hollywood film, ìMr. Smith Goes to Washington,î fictional freshman Sen. Jefferson Smith is elected to the Senate and arrives only to find a body polluted by rampant corruption and greed. Disgusted, Smith (played by actor Jimmy Stewart) stands up before the body and begins to lecture against a corrupt piece of legislation. He refuses to surrender control of the floor for 23 hours in a final stand aimed at preventing a likely subsequent vote to pass the bill. After Smith collapses and finally yields the floor, a fellow senator shamed by Smithís stamina and integrity admits that Smith is telling the truth about the legislation, thereby defeating it and restoring the bodyís honor. Hollywood often takes liberties with the truth, but Smithís actions are actually possible. Smith was invoking the time-honored practice of the filibuster, a colorful and quirky practice of unlimited senatorial oration aimed at blocking a vote on legislation or a presidential nomination. It has existed since the founding fathers created the Senate in the Constitution and is a unique feature of the U.S. polit ical system. But Senate Republicans, angered by Democratic colleaguesí use of the tactic to block President Bushís judicial nominations over the past two presidential terms, could soon curtail the practice in a manner that some contend could cause it to enter a slippery slide into extinction. The swashbuckling conduct of the filibuster gives it its name. The term ìfilibusterî derives from the Spanish filibustero, or freebooter, and the earlier Dutch words for ìfreeî and ìbooty.î Essentially the words connote a pirate. The connection is that the practice gives a single senator the ability to hold hostage the entire senatorial body, or a committee therein, so long as he or she can continue speaking on a subject. The practice, in place since the U.S. Constitution created the three branches of federal government, comes from the tradition of free debate in the Senate. To launch a filibuster, a senator need only be the current party entitled to speak. The senator then just begins to talk and can continue until he can speak no more, can no longer stand, or until a three-fifths majority of the Senate (60 votes in the 100-member Senate) vote to silence him through a vote for cloture. The filibuster is unique to the Senate. Members of the House of Representatives in the early years could use the same practice. However, as the House grew in numbers to its present 435 members, House rules were modified to limit debate. The filibuster is a tool of the weak, whether invoked by a lone senator without the support of other senators or by the minority party against the majority. At present, with Republican President Bush entering a second term and both houses of Congress holding Republican majorities, it is one of the few supra-majority checks against single-party dominance that the Democrats can invoke. The issue was brought to a head recently because of federal judicial nominations. Candidates for such positions are nominated by President Bush and then must be approved by a 51-vote majority in the Senate. With a Republican president and 55 Republicans in the Senate, a vote along party lines means automatic approval of judicial nominees. But 55 votes is not the 60 needed for a cloture vote to end a filibuster launched by Democratic senators seeking to thwart a nomination. Democrats, who charge Bush with appointing extremely conservative nominees on such issues as civil rights, abortion and the environment, used filibusters to prevent 10 federal appellate court nominations in Bushís first term. In his second term, Bush renominated seven of the 10 judges, all of whom Democrats have threatened to again filibuster. Frustrated Republicans charge that the will of the people is being denied and claim that Democrats seek to force the appointment of judges who are excessively liberal on the same issues. They are threatening to take actions in the Senate that would essentially eliminate the filibuster practice through a so-called ìnuclear optionî that would change Senate rules to curtail the practice. Depending on which side of the debate you stand, the move to eliminate judicial nomination filibusters is either a mortal strike against the checks-and-balances system designed to prevent tyranny of the majority or a necessary surgical procedure (an apt term, perhaps, given that Republican Senate Majority Leader Bill Frist, who is leading the charge against the filibusters, is a former heart surgeon) to prevent the sabotage of the judicial nomination process. ì[The filibuster is] an essential factor in the identity of the U.S. Senate. Absent the filibuster and several other practices in the Senate, the Senate would be the House of Representatives in miniature: a dominant majority being able to work its will in almost all cases,î said Ross K. Baker, a professor of political science at Rutgers University. ìThat would be a fearful distortion to the intent of the framers of the Constitution,î Baker added. ìThe filibuster instead defines the Senate as an institution created by framers of the Constitution as the one place where a minority voice would have resonance. Has it been abused? Yes. Do the abuses justify it being diluted or eliminated? Emphatically no.î Baker said the rationale to preserve the filibuster is particularly strong in the case of nominations of powerful circuit court level appellate judges, who interpret and rule on the constitutionality of legislation and whose decisions bind lower federal district courts. ìThe nature of appointing federal justices for life terms provides a very legitimate logic for its use,î he said. ìWhen you have unified party, control protection of minority rights is even more essential.î Former presidential candidate Al Gore claimed that the efforts to overcome the filibuster reflect a lack of respect for the law. Gore noted that despite his belief that voting irregularities in Florida had cost him the presidential election, he acceded to the decision of the U.S. Supreme Court that the Florida voting was valid. ìI can tell youówithout any doubt whatsoever óthat if the justices who formed the majority in Bush v. Gore had not only all been nominated to the court by a Republican president, but had also been confirmed by only Republican senators in party-line votes, America would not have accepted that courtís decision,î Gore said in an April 27 speech. Many people, in fact, have interpreted the move to block judicial nominations as a prelude to a bigger fight over one or more replacements on an increasingly geriatric and frail U.S. Supreme Court, where a slim majority has retained the landmark and controversial Roe v. Wade abortion decision. Replacement of a single moderate or liberal Supreme Court justice with a conservative one could in theory curtail or eliminate that right. Filibusters have actually derailed a U.S. Supreme Court appointment in the past. In 1968, Democratic President Lyndon Johnson withdrew his nomination of U.S. Supreme Court associate justice Abe Fortas for chief justice after a cloture vote to end a filibuster against the nomination failed. Supporters of restricting the filibuster for judicial or other presidential nominations claim that the action threatened against filibusters is far more limited than opponents portray and poses little threat to democracy. They claim, rather, that the filibuster is being used to thwart the constitutional right of the president to appoint federal nominees with only the ìadvice and consentî of the Senate. ìNo one is suggesting that the filibuster should be gotten rid of entirelyóit should simply not be permitted to override the presidentís constitutional appointments authority,î said Andrew C. McCarthy, a senior fellow at the Foundation for the Defense of Democracies. ìThe filibuster should be available for all legislation and all matters that are uniquely the constitutional prerogative of the Congress. It should not be available in any instance where its use would effectively trump the constitutional authority of another branch. ìThis would bring it into line with other well-established limits to Congressís authority,î McCarthy continued. ìThe Congress, for example, is fully free to legislate in the area of interstate commerce. It may not, however, enact a law that states a test for what conduct violates the commerce clause. ìWhy? Because that would effectively seize the authority of the courts, whose constitutional function it is to make such determinations. Similarly here, the Senate is fully empowered to make its own procedural rules. but it should not be able to make one that effectively trumps the presidentí s constitutional appointments power. The logic of the pro-filibuster position is that Congress could prevent the president from making any appointmentsónot just judicial appointments. That would grind government to halt and render the American people vulnerable, an absurd result.î The irony of the filibuster is that like many tools of the weak, its aggressive use by a truly weaker party invites attempts by the stronger to eliminate it. And that is relatively easy to do in the case of the filibuster because it is merely Senate practice (only cloture is actually embodied in a formal rule), rather than a piece of congressional legislation or a constitutional provision, which can be altered only through a laborious and long amendment process. A likely scenario for the curtailment of the filibuster would begin when Democrats next seek to filibuster a judicial nominee. A Republican senator would first move to invoke cloture when the Democrats filibuster a judicial nominee. If the Republicans could not muster the 60 votes necessary for cloture, a Republican senator would call a point of order questioning the use of filibusters against judicial nominees. The parliamentarian, an appointed position that serves at the pleasure of the Senate majority leader, would analyze the request but would likely deem the practice valid given its longstanding history. This would likely lead the presiding officer of the Senate, most likely Republican Vice President Dick Cheney, to overrule the parliamentarian, declaring the filibustering of judicial nominees out of order. Democrats would likely object, and the question would be set to a vote. A simple majority of those present could then vote to change the Senate rules and ban filibusters of judicial nominees. (Only 50 votes would be needed because Senate votes that end in ties can be decided with a vote by the presiding officer, Cheney.) Negotiations to reach a compromise have been conducted recently, but as of mid-May no deal had been reached. One proposed compromise between the leadership of both parties would call for Republicans to avoid resorting to the nuclear option in exchange for Democratic approval of some nominated judges. Another proposal would focus on obtaining a smaller group of six Republicans and six Democrats to reach a more limited arrangement to deny the Republicans the 50 votes necessary to eliminate the filibusteróin exchange for an agreement by the Democrats to support cloture to end the block on some of the filibustered nominees. David Tobenkin is a freelance writer in Washington, D.C. Filibusterís Colorful and Controversial History The filibuster has been used by both parties and by some of the most colorful legislators in U.S. politicsóand it has always been controversial. The practice has been used aggressively since at least the mid-19th century, when the Democratic minority attempted to block a bank bill promoted by Whig Party Sen. Henry Clay. The use of the technique led Clay to threaten to change the rules, although he never made good on the threat. The limit on debate represented by cloture occurred in 1917, when, at the suggestion of President Woodrow Wilson, the Senate adopted a rule that allowed a two-thirds majority vote to end a filibuster debate. The filibuster has been applied in the context of international treaties, which must be approved by a two-thirds majority of the Senate. In 1919, the Senate invoked cloture to end a filibuster against the Treaty of Versailles. During the 1930s, Democratic Sen. Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor or that benefited his enemies. His filibustering included some key portions of fellow Democratic President Franklin Rooseveltís landmark New Deal legislation creating federal welfare programs. Republicans used the technique frequently in the 1950s and 1960s to block landmark civil rights legislation against racial discrimination. Such filibusters include the longest on record: South Carolina Sen. J. Strom Thurmondís 24-hour-and-18-minute filibuster against the Civil Rights Act of 1957. A dramatic use of cloture ended a similar filibuster against the landmark Civil Rights Act of 1964, which protected minority voting rights and banned racial discrimination in public facilities. Minority Leader Everett Dirksen mustered enough Republican votes to assist Democrats in defeating the filibuster. Dirksen noted that it was the 100th anniversary of President Abraham Lincolnís nomination to a second term, when the Illinois Republican and opponent of Southern slavery quoted the words of novelist Victor Hugo: ìStronger than all the armies is an idea whose time has come.î Dirksen appended his own comment: ìThe time has come for equality of opportunity in sharing in government, in education, and in employment. It will not be stayed or denied. It is here!î When the clerk proceeded to call the roll to count votes, Sen. Clair Engle, stricken by a brain tumor, could not speak. Engle heroically raised a crippled arm and pointed to his eye, signifying the affirmation ìAyeî and an affirmative vote for cloture. The cloture was achieved with a 71-29 margin and the legislation was approved by the Senate nine days later. In 1975, the margin required for cloture was reduced to 60 votes, a tremendous check on the aggressive use of a filibuster given the far greater ease with which a party can obtain 60, rather than 67, votes. And what exactly does one say when time is no object? A senator can only marshal the facts in favor of a position for so long and so many times. Any subject whatsoever is fodder for tireless gabbing. One remarkable feature of filibusters is that senators need not confine their comments during a filibuster merely to the issues being debated. Huey P. Long, the fiery, Great Depression-era Louisiana senator and frequent user of the practice, once entertained spectators by reciting passages from the Bible, the Constitution, Shakespeare and personal recipes for ìpot-likkers.î óDavid Tobenkin