Senate Rule XXII has changed slightly over the last 70 yearsnow it only takes three-fifths of the body to end debatebut the Senate remains a graveyard for bold legislation. With President Joe Biden endorsing the most ambitious agenda of domestic reform in more than half a century, Democrats in and out of Congress are calling for the abolition of the filibuster.
Lacking the votes to do so, Biden has instead endorsed an extremely modest compromisea return to the status quo of 1949, now known as the talking filibuster, to replace the current system in which the minority party can compel the majority to withdraw a bill merely by signaling that it can muster the votes to defeat cloture, essentially moving it to the Senates backburner and letting it die there silently.Senator Joe Manchin of West Virginia has adamantly opposed abolition but indicated that he could accept a return to the talking filibuster.
By whatever name you call it, the filibuster was a political and moral catastrophe. The proposed compromise feels something like a more humane application of the death penalty. Nevertheless, the talking filibuster is worth pursuingjust barely. The public would benefit from hearing the latter-day version of LBJ circa 1949 tie him or herself in knots trying to justify preventing majority rule on the most urgent questions before the nation, and history would have a record of those arguments, rather than just allowing the arguments and legislation to die silently as they do today.
A certain majesty attended the filibuster of yore, with immense stakes hanging in the balance as each side clung fast to its position. Who would weaken first? Fifteen years after those two freshmen senators defined themselves by the opposing sides they took on filibuster reform, they would come together, as president and majority whip, to finally defeat the filibuster in order to pass the Civil Rights of 1964. That was another plus of the old system: You could win. And even if you didnt, every once in a while you provided the nation with sublime legislative theater.
The Capitol Hill reporter William White, a connoisseur of parliamentary legerdemain, once described the Senate as the Souths unending revenge upon the North for Gettysburg. Southern Democrats mastered the fine arts of legislative warfare and brought them to perfection in the face of northern efforts to end the feudal condition of Black people.
At the beginning of every new term throughout the 1950s, Humphrey or one of the other Senate liberals would propose a package of civil rights measures, usually including laws against lynching and poll taxes and the establishment of a Fair Employment Practices Commission to prevent discrimination in hiring. As soon as a motion to consider the measures was proposed, Russell would spring into action like Napoleon dispatching his marshals to the enemys flanks. He would typically organize four two-man teams, each assigned to monopolize a four-hour block of debate. His men could keep up this regimen for weeks if need be. As soon as Russell saw exhausted opponents leaving the chamber, he would call for a quorum. If fewer than half the membersthen 48remained, the house would adjourn, thus wasting another day and driving the other side further to despair.
Since Russell ordered his supporters to stay away, the northerners had to remain to make up a quorum. Eventually, recalled liberal champion Paul Douglas of Illinois, the North, exhausted, would call for a cloture vote, and then red-eyed, haggard and weary, stagger into the Chamber for a final showdown. The Southerners, on the other hand, would appear sleek, well-dressed and have sparkling eyes and rosy cheeks. The cloture vote would fail and civil rights legislation would disappear for another two years.
The liberals lacked the discipline or the numbers for this game. One of the few times they tried, when Republicans and southern Democrats prepared to overturn Trumans veto of the McCarran-Walter Immigration Act in 1952, 66-year-old Senator William Langer (R-N.D.) bellowed and croaked for five hours, began to wobble on his feet, and at 5:13 am turned to Humphrey to hand off the job. Langer got as far as I yield to before collapsing; Humphrey caught him on the way down. Langer was carted off the floor in a stretcher, and the veto was overridden 57-10.
Throughout the 1950s and 1960s, liberals suggested reforms of Rule XXII that would go much further to restore majority rule than todays proposed compromise. In 1951, Humphrey and nine others suggested retaining the two-thirds requirement for the first 48 hours of debate and then switching to a majority of those present for the next fifteen daysafter which debate would end. In 1961, Humphrey and minority leader Thomas Kuechel proposed giving the Senate 15 days to debate after a cloture motion had been filed and then ending debate by a majority vote. Thereafter each senator would be given an additional hour. Neither measure went anywhere. Johnson himself, operating as the virtually omnipotent majority leader, defeated efforts at filibuster reform in 1961 and 1963.
Everything changed in 1964. After long delay and much resistance, President John F. Kennedy had submitted a major civil rights bill to Congress in the summer of 1963. The bill would prohibit unequal application of voter registration requirements, outlaw segregation in public facilities, authorize the U.S. attorney general to enforce school desegregation suits, and much else.
By the time Kennedy was assassinated that fall, Johnson had become a far more passionate advocate of civil rights than the president was. He had always been a loyal servant, but never an acolyte, of the cause of the filibuster; now, it cast a dark shadow on the great goal of his life.When Richard Russell warned his friend and former protégé that he would paralyze all Senate businessincluding a tax cut to which LBJ was almost equally attachedin order to block the civil rights bill, the president said calmly that he was prepared to put off everything for a year if need be in order to pass the civil rights bill. Johnson entrusted his majority whip, Hubert Humphrey, with the job of defeating the filibuster and passing the civil rights bill.
Humphrey had spent his entire career in the Senate watching his fondest hopes wrecked on the shoals of the filibuster. Like many of the liberals, he harbored a grudging respect for the supreme discipline Russell had imposed on his followers. Humphrey was determined to prove that liberals could win by the rules he despised. In a mirror image of Russells tactics, in March 1964, Humphrey appointed a rotating four-man group called the Civil Rights Corporals Guard to act as the whips whips. He divided his whole team into two groups of 25, with each obliged to be present at all times on alternating days in case of a quorum call. To ensure that no quorum call would go unmet Humphrey ordered the sergeant-at-arms to roust members from their beds, if need be; he even had members paged at the Washington Senators opening game with orders to return to the floor. The southerners had never seen the like. When Russell objected to a daily newsletter in which Humphreys staff laid out the days marching orders, the Minnesota senator crowed, I know whats wrong. For the first time, were putting up a battle.
The era when Huey Long killed time by reading potlikker recipes on the floor had passed into history; both sides debated the merits, if at agonizing length. In his opening speech, March 10, Russell asserted, perhaps with the hope of shocking the nation, that the bill would permit Negroes to get into any private club in the nation. That, in turn, would lead to amalgamation and mongrelization of the races. Senator Strom Thurmond of South Carolina argued that the 14th amendment, upon whose language the bill in part depended, was illegitimate because it had been approved when southern states had not been readmitted to the Union, and so had been passed by Negroes and scalawags and a few others. Humphrey zestfully parried these attacks, but for once showed the self-restraint to let othersliberal leaders like New York Republican Jacob Javits and Senators Warren Magnuson and Abraham Ribicoff, Democrats of Washington and Connecticut respectively do most of the talking.
Backstage, LBJ was urging Humphrey to start courting Everett Dirksen, the Republican minority leader who, alone, could deliver the partys votes for cloture. In late April, Dirksen began meeting with Humphrey and his lieutenants and officials in the Justice Department, negotiating for the Johnson Administration. Humphrey let his optimism get the better of him. He publicly predicted that he would have the votes for cloture in a weekthe kind of mistake LBJ himself, a vote-counter of almost occult gifts, would never have made. In mid-May, he admitted he was still a long way away. Southerners had switched to a new tactic, submitting hundreds of amendments and forcing a vote on every one.
May 1964 devolved into a legislative death march. But the excitable Humphrey never blew his cool. Reading the debates, you cant miss the wistful notes of affection from his southern rivals. After an endless, arcane exchange with the whip, Democrat George Smathers of Florida said, Sometimes he is so busy performing the many duties he must perform as whip that he does not have an opportunity to talk to me. Humphreys graciousness made the bitter pill of defeat slightly easier for the South to swallow.
By early June, Dirksen had come around, agreeing to a set of largely toothless amendments. On June 9 Humphrey told the president that he had lined up 66 soldiers for closure. But he kept working the phones; by the next morning he was up to 70. Meanwhile, Senator Robert Byrd of West Virginia was delivering the Souths final trumpet blast, a 14-hour litany of repudiation that only ended at 9 am on the 10th. That evening the Senate voted 71 to 29 to end debatethe first time cloture had ever been successfully invoked on a civil rights measure. Nine days later, in what was almost an anti-climax, the Senate passed the Civil Rights Act of 1964. The revenge of Gettysburg was no more.
Thanks to the filibuster, Americans had gotten a three-month education in civil rights. Lost Cause nostalgia was no match for a fundamental sense of decency towards the victims of slavery. Yet the legislation only passed because Americans had turned so decisively against Jim Crow that few outside the South would speak up for it. If Richard Russell had been able to muster just five more supporters the talking filibuster would have eked out another victory.
Today the numbers are slightly different, but the logic is not. Mitch McConnell has only to hold on to 41 of the 50 members of his caucus to talk a bill to death. He can use the quorum call to force the Senate to adjourn just as Russell did. (He cant hold up Senate business, however, because cloture rules now allow a two-track process where other business can be heard.) He can, in short, block Bidens domestic agenda as thoroughly as Richard Russell did to Harry Truman. And while there may be something to be said for forcing the Republicans to spell out their views in public debate, four hours of Senator Ron Johnson might not be a compromise not worth winning.
If we must have a filibuster, let it be a talking one. But lets not stop there: We need to find new ways to limit debate, as Humphrey and his colleagues sought to do, so that our legislative bodies serve rather than obstruct the cause of justice.