By MIKE MANNO
As a kid I remember watching the great Frank Capra classic Mr. Smith Goes to Washington and becoming enamored with the idea that one senator, standing on principle, could bring the work of the Senate to a halt.
For those who do not remember, the 1939 film was about a naive man, Jefferson Smith, played by Jimmy Stewart, who is appointed to the Senate after the death of the incumbent. In Washington Smith gets caught up in a scandal involving the state’s senior senator, Joseph Paine, played by Claude Rains, and is forced to defend himself by taking the floor of the Senate to speak in his defense.
After holding the Senate floor for over 24 hours, Smith collapses from exhaustion, and in the climactic scene, Paine confesses that he had helped frame Smith.
But, of course, that’s not how the modern filibuster works; the new politically correct filibuster is now a device used tactically to prevent the Senate from considering legislation that does not have the support of a super-majority of the members.
A little history might be in order. In the early years of the republic both the House and the Senate had a rule that allowed any member to move the “previous question” which, if passed, would close debate and move the bill under consideration to a vote. Later, almost by mistake, the Senate eliminated the rule, thus creating the possibility of filibuster.
There were, however, very few filibusters before the Civil War. That changed by the 1880s and the Senate leaders — try as they might — were unable to reinstate the old previous question rule. But in 1917 the Senate did adopt a rule change where, by a two-thirds vote of the Senate, they could cut off debate, a process called cloture.
In 1975 the rule was changed from two-thirds to three-fifths, dropping the number required to invoke cloture from 67 to 60.
Now much of the Senate business is done by unanimous consent, but if a senator refuses to consent the members can, with 60 votes, invoke cloture and move to a vote. Thus the effect is that the old previous question motion now requires 60, not 51, votes to get an up-or-down vote on the legislation that is before the body. The cloture process itself can be a bit complicated, but we needn’t go into that now.
The result is a filibuster that in no way resembles Sen. Smith’s in the film. Senators can still try to hold the floor to make a point, but the real filibuster is more an illusion wherein the minority — if it holds 41 votes — can stifle the majority and prevent legislative action on most matters. It’s the minority’s version of a head fake.
I used to have two basset hounds — the older male was Bentley, and the younger female was Bailey. When Bailey began to play with one of Bentley’s toys and Bentley wanted it back he would come to me, lay his head on my lap and I would pet him. Bailey, seeing that and being a jealous little thing, would drop the toy and come to be petted, too. Bentley would then go and get the toy Bailey dropped.
That worked so well for Bentley that ultimately all it took to get Bailey to drop the toy was a head fake in my direction; on cue Bailey would drop the toy and Bentley would get it before Bailey got to me. I don’t know why Bailey never figured that out, but she didn’t and it worked for Bentley up until the day he crossed the Rainbow Bridge.
So when I see the word “filibuster” used to describe what is going on in Washington, I think of those two basset hounds and how one was able to hoodwink the other by a simple head fake. In the Senate, the minority only needs to head fake, call it a filibuster, and the majority folds. And it happens both ways regardless of which party is in the majority.
And the result is that piles of legislation passed by the House lie in the head-fake doghouse in the Senate where none will ever see the light of day — even if it has the support of a majority, unless, of course, that majority has 60 votes. And the public — under the mistaken impression that Republicans control the Senate (they don’t have 60 votes) — wonders why nothing seems to get done.
Not only does important legislation now die in the Senate, but the public loses confidence in their elected leaders, confused how some items (such as reconciliation bills) do not need 60 votes and why others (most other legislation) do.
But like much else in the political world, the answer is simple to state but hard to implement. The answer, of course, is to allow a simple majority to use the previous question rule to cut off debate and move to a vote on the pending bill. Any senator can still have the right to speak for as long as he or she can hold the floor, but once that senator is still, a motion to move the previous question would be in order.
Of course there is a lot of objection to changing the rule. Members of the majority party are slow to move fearing that someday they will be in the minority without means to force compromises or block bills of which they disapprove.
Others point out that we need not be run by majority vote; we are, they argue, a republic and not a democracy and our constitutional fathers made that very clear in numerous provisions in the Constitution: equal representation by states, two-thirds vote for amendments, treaties, and veto overrides, among others.
Many others argue that without the current rule the government would simply continue its exponential growth and budget-busting ways, especially since politicians love rewarding constituents with their own money.
But I think the cloture rule has outlived its usefulness and has become a drain on the body politic. The fact is that in 2016 the voters made it clear that they wanted the government swamp drained and a more populist government in Washington.
That’s what they voted for but are not getting because the rule has been weaponized by one party — not to force compromise, but to stop or delay anything Trump wants and to prevent the consideration of dozens of bills passed by the House.
Minority rights can still be respected. Senators can still hold the floor as long as they can talk — the true filibuster. But it is important for the Senate to be able to work its will without the hindrance of the need for a supermajority. It can be done. The previous question rule can be re-established or the Senate could establish a rules committee similar to the House’s that would attach debate rules to each bill that passes out of committee.
It can be done. Whether or not there is a will to do it is another matter.
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