The View From 1776

Filibusters and Constitutional Principle

Background for the Senate battle over President Bush’s nominees.

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After looking into the history of filibusters, I have reached two conclusions, both the opposite of my starting impressions.

First, what’s going on today is nothing new.  In fact, it is less obstructionist than what happened many times in the past, when all different sides and political parties used filibusters to halt all legislative activity, in some cases for months, and thereby to thwart majority votes on specific issues.  Filibusters started in the very first session of Congress, in June 1790, and they have been used dozens of times in both Houses of Congress since then.

Second, however much I abhor the secular humanist views of liberals who oppose the President’s nominees, I find myself favoring retention of the filibuster. 

Most importantly, our Constitution was intended to create a Federal government of limited powers.  To that end delegates to the Philadelphia Constitutional Convention in 1787 structured a series of checks and balances.  Filibusters, though not specifically authorized in the Constitution, are part of a tradition of more or less unlimited debate running back several centuries in American and British tradition.  The aim of unlimited debate is to prevent strong executives or strong party factions from steamrolling minority views.  That necessarily means that passing legislation must be difficult and time-consuming to assure that all sides of important issues are thoroughly and fairly considered. 

The most important of all minority interests, the bedrock principle of our Constitution and the reason for our War of Independence in 1776, is the Fifth Amendment rights of private property.  It’s a great pity that rational opinion in 1933 and later years of the New Deal failed to halt President Roosevelt’s imposition of our socialist welfare state and the abrogation of vital property rights.  A cunning executive like Franklin Roosevelt who is intent on maximizing his personal power at the Constitution’s expense can too easily manipulate public opinion by playing on greed, unless Senators are willing to stop him with filibusters, if necessary.

Ironically, the judicial activism favored by liberal-socialists is a tactic to circumvent Congress’ constitutional prerogative of thorough and careful consideration of legislation, as well as to prevent the implementation of legislation that enjoys wide and deep public support.  Judicial activism permits a small number of individual judges to impose their personal views regarding the secular religious catechism of social justice.

Filibustering supports this by allowing a handful of socialistic Senators to prevent appointment of judges who oppose activism.  Without the cover of a filibuster by Senators from socialistic states like New York, Massachusetts, Connecticut, Vermont, and California, Democratic Senators from other states would be compelled by their constituents to vote to approve the President’s nominees.

Nonetheless, the principle of strong legislative checks, via lengthy debate in filibusters, outweighs the evil done in specific cases.

Viewing filibusters as a matter of principle, whether the filibusterers’ views are well-taken or ill is not the issue.  Effectively limiting government power and preserving individual political liberty requires mechanisms to forestall ill-advised popular action taken hastily, in the heat of the moment, the sort of defect that was both the downfall of classical Athens and the origin of the French Revolution’s mass murders in its Reign of Terror. 

The public may clamor for quick action by a strong President who will impose his will on the legislative process.  But let’s not forget that this is exactly what we got in 1933, when Franklin Roosevelt was able to use the panic of the Great Depression to collectivize nearly all governmental power in Washington, DC, and thereby to impose our present-day socialistic welfare state.  Had it not been for the New Deal and President Roosevelt’s openly socialistic Ivy League Brains Trusters, such as professors Rexford Guy Tugwell, Dean Acheson, Adolf Berle, and Charles W. Taussig, we would not now confront the catastrophe-in-the-making of Social Security and Medicare insolvency.  The basic rottenness of American society today is the decay of individual morality and personal responsibility stemming from the barrage of socialistic economic and social-control programs rammed through Congress in the famous first 100 Days of the New Deal.

In the case of our own Constitution, the counter-principle is described in Federalist No. 51, written either by Madison or Hamilton in 1788:

“To the People of the State of New York:

“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

“It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Even though, in the present situation, liberal-socialists are using threats of filibusters to destroy the unwritten constitution of our nation, it’s better to permit filibusters than to throttle them.  However infuriatingly frustrating they have been, the more effective, less harmful tactic is to turn public opinion against the filibusterers’ atheistic and socialistic designs, rather than to curtail free speech.

What in recent years have been called filibusters are merely threats to stage real filibusters, against which the majority party has backed down, because they preferred to get on with passing other essential legislation.  Calling the liberal-socialists’ bluff and holding a real, 24/7 filibuster will compel these obstructionists to choose between a full floor vote on nominees, or bringing the Federal government, in a time of war, to a standstill. 

A real filibuster that stops all Senate action, even on urgent matters, will focus public opinion on the narrowly ideological, anti-moral and anti-religious nature of their opposition.  It will become much more widely known that all of the President’s judicial nominees, for example, have been rated qualified or highly qualified by even the left-wing, socialist American Bar Association.  Liberal-socialists endeavor to prevent a full floor vote, where confirmation is assured, only because they oppose judicial nominees who are not atheistic socialists.

Once that begins to seep into the consciousness of the general public, we may hope, liberals will find themselves in the same position that stymied Republicans under Newt Gingrich when President Clinton called their bluff and let them shut down the Federal government in 1995 in the Federal budget dispute.  The Republicans lost that PR battle with the Democrats, who are aware that they can suffer the same fate over the filibuster tactic.

It is ironic, of course, that liberal-socialists are today so strenuously defending filibusters as an essential element of free speech and political liberty.  For generations, Southern Senators employed filibusters to prevent the passage of civil rights legislation.

Most readers will know that a real filibuster requires opponents of a legislative action to speak against it non-stop, round-the-clock, until either they exhaust the will to continue and yield the floor to their opponents, or until the opponents knuckle under and postpone or drop the proposed legislative action.  Some of these real filibusters have been colorful affairs.  My own home-town boy, Senator Huey Long, entertained the public for fifteen hours and thirty minutes in 1935, when he opposed some of President Franklin Roosevelt’s budget measures.  The all-time record for a single speaker holding the floor in a filibuster was established by the late Strom Thurmond of South Carolina, who spoke continuously for twenty-four hours and eighteen minutes opposing the Civil Rights Act of 1957.

How did filibusters arise?

In the House of Representatives filibusters have not, since the beginning of the 20th century, been a big factor in legislative tactics, because the powerful Rules Committee can set limits on debate and thereby assure that a vote will be taken, if the majority party desires it.  To a considerable extent, this also reflects the large membership in the House (435 Representatives), which makes open debate on the floor of the House a practical difficulty.  As a consequence, most of the House’s business is conducted in committees, where the testimony and questioning of witnesses amounts to extensive debate.

The Senate, as we now know too well, is a different story.  With only 100 members (two from each state), extensive debate on the Senate floor is possible.  At least 60 Senators must vote to invoke cloture (i.e., to terminate a filibuster).  Under the Senate’s rules, no other motion, such as calling for the previous question, moving to adjourn, or laying on the table for future discussion, is effective in stopping debate in a filibuster.

No provision of the Constitution directly authorizes filibusters.  Their legitimacy arises under Article I, Section 5, which reads, inter alia, “Each House may determine the Rules of its Proceedings…”  The proposed “nuclear option” involves using a provision of Senate rules to change the rules affecting filibusters in order to make cloture easier.

A present-day anomaly is that the threat of a filibuster is being used by liberals from the most populous East and West Coast states to oppose majority views in the nation’s heartland.  Theoretically filibustering in the Senate is most useful to the smaller states against the more populous states’ greater numbers of Representatives in the House.

Throughout the most of the 1800s, filibusters were more common in the House than in the Senate.  Speeches by filibustering Senators could be stopped by calling for the previous question, or by a motion to lay on the table.  Moreover, the presiding officer of the Senate had the authority to terminate speeches he regarded as not directly relevant to the question under debate.

Possibly the first filibuster was in June of 1790, in the first session of the House of Representatives under our new Constitution.  The protracted argument that stalled other vital legislation for a month was over where to locate the new national capitol: New York, Philadelphia, or nearer the nation’s most populous state, Virginia.

Not until 1825, when John Randolph entered the Senate, did lengthy debate become a contentious issue in that chamber.  Senator Randolph’s long-winded, and sometimes vicious, speeches produced a fist-swinging free-for-all at one point on the Senate floor.

Over the years, Senate rules changed from time to time to limit debate or to make terminating irrelevant speeches easier.  In 1872, seven years after the end of the Civil War, however, the modern filibuster came into existence in the Senate.

In the 1872 election for the Presidency, a large segment of the Republican Party opposed the Radicals’ policy of keeping the former Confederate states under military subjugation.  With their support, Ulysses S. Grant won re-election for a second term as President.  Moderate Republicans, over objections of the Radical Republicans, passed the Amnesty Act of 1872 restoring full political privileges to almost all southern whites who were still disenfranchised by Reconstruction.  Reconstruction was then entering its last stage.

I have been unable to discover the specific issue in 1872 that led to full empowerment of the filibuster, but it may have been a matter relating to ending Reconstruction.  Vice President Schuyler Cox, as presiding officer of the Senate, ruled that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending issue.”  Since then, the rules of cloture to terminate a filibuster have been modified from time to time, but mostly in the direction of making it more difficult to stop filibusters.

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