01.05.11

The Liberal Case for Stonewalling

Democrats are trying to curtail the parliamentary ploy, but there are plenty of reasons for liberals to love it. Samuel P. Jacobs reports on the lefty case for keeping the filibuster alive.

Democrats began the new Senate session Wednesday by trying to end the old form of filibuster, that scourge of right-thinking liberals everywhere. Walter Mondale emerged from his Twin Cities igloo to stump for reform. Tom Udall, the New Mexico Democrat, shouted for sunshine in the Senate, urging his colleagues to “bring the workings of the Senate out of the shadows.” All Democrats are on board, signing a letter sent to Majority Leader Harry Reid before the Christmas break in support of reform. The changes would be slight, but they reflect a shared disgust among Democrats for the paralyzing effects of Republican filibustering that so bedeviled the president’s party during the first two years of Obama’s White House tenure.

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As the reform effort gathers steam, it’s worth remembering that the Democrats were for the filibuster before they were against it.

Case in point: Mr. Flip-Flop himself, John Kerry. The Massachusetts senator was among prominent Democrats and liberal groups who praised the filibuster—a parliamentary dodge which lets the minority freeze debate unless the majority can muster 60 votes—as a means of locking out Samuel Alito from the Supreme Court bench in 2006.

“It is our right and our responsibility to oppose him vigorously and to fight against this radical upending of the Court,” Kerry said then, promising to join Barbara Boxer and Teddy Kennedy on the filibuster barricade.

This week, Kerry bad-mouthed the current use of the filibuster as “gamesmanship” which the “old bulls in both parties wouldn’t have stood for.”

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Not every Democrat has switched sides in the filibuster wars—although whether one’s party is in the majority or the minority usually dictates the terms of the debate. (“Where you stand depends on where you sit,” said Sarah Binder, co-author of Politics or Principle?: Filibustering in the United States Senate. ) In his final speech as a senator, Connecticut’s Chris Dodd made a last-ditch defense of the filibuster as part of traditions which make the Senate “a unique American institution.”

“I certainly share some of my colleagues' anger with the repetitive use and abuse of the filibuster. Thus, I can understand the temptation to change the rules that make the Senate so unique—and, simultaneously, so frustrating. But whether such a temptation is motivated by a noble desire to speed up the legislative process, or by pure political expedience, I believe such changes would be unwise,” Dodd said.

Enthusiasm for ending the filibuster comes from members “who had never served a day in the minority,” Dodd said.

Mitch McConnell, the Republican leader in the Senate, wrote in The Washington Post Wednesday that Democrats would be wise to remember that no majority is permanent. Other Republicans see any curtailment of the filibuster as trampling on minority rights.

There was a time, particularly during the Alito confirmation battle—as Republicans threatened to end the filibuster with the so-called nuclear option—when Dodd’s pro-filibuster stance wasn’t so unpopular in Democratic ranks.

So what is the liberal argument for keeping the filibuster around?

For starters, Democrats have always trumpeted the importance of protecting the little guy. As the editorial page at The New York Times put it this week, the filibuster “remains a valuable tool for ensuring that a minority of senators cannot be steamrolled into silence.”

The Senate has never been a perfectly democratic institution; the filibuster is arguably one of its lesser sins. Even when the early states were each given two seats, population sizes varied greatly. In fact, when used correctly (i.e., by the Democrats), the filibuster can help right this representational wrong. Democratic senators tend to represent more populous states, so even when they are in the minority, they represent the lion's share of American voters. Back during the Alito fight, Hendrik Hertzberg, perhaps the country’s leading liberal electoral reform wonk, pointed out that the 44-person Senate Democratic minority actually represented two million more people than did the Republican majority.

Plus, no matter who holds the majority, the filibuster helps fulfill the founders’ vision of the Senate as an inherently conservative institution—in the sense that the body was designed to prevent radical change fueled by the narrow-minded proles who are elected to the House. That’s why we have that old saw about the Senate being the saucer that cools the legislative brew. “The filibuster is a pretty reasonable recourse,” Slate’s Jacob Weisberg argued in 2005.

Another reason liberals can feel good about the filibuster: Harry Reid. The Nevada Democrat is the best filibuster buster in history, thwarting 69 percent of total Republican attempts. The next best batting average belongs to Republican Bill Frist and Democrat Mike Mansfield at 63 percent. If the filibuster is here to stay, even in a perhaps diminished capacity, the Democrats should sleep easy with Reid at the wheel.

Democrats also have history on their side, even if they don’t realize it. The most familiar fans of filibustering are the late Strom Thurmond and the late Robert Byrd. Both happened to be Democrats, but their use of the rhetorical tool to halt civil-rights legislation left a certain stain on the filibuster, relegating it as a last refuge for reactionaries. Contributing to the Democrats’ suspicion that the filibuster is a Republican fixation is the frequency with which the GOP have wielded it in recent years—203 times since the Republicans joined the minority in 2007, twice as many as during the previous four years. Among the Senate’s leading stonewallers are Republicans Tom Coburn, Jim DeMint, and Mitch McConnell.

But liberals have given the filibuster a working out themselves. A number of Hall of Fame-level filibusters were performed by prominent lefties. In 1908, Wisconsin Sen. Robert La Follette, a leading Progressive of the era, set the Senate record for the longest filibuster (broken many times over since). For 18 hours, La Follette stood against a banking bill he believed to be too friendly to big business. Louisiana populist Huey Long read recipes for fried oysters and Roquefort salad dressing during his 1935 protest of National Recovery Association appointments. In 1953, Oregon Independent Wayne Morse used the filibuster to object to legislation which would have handed over oil-rich land to Texas from the federal government. Finally, the Senate’s only self-described socialist, Independent Bernie Sanders, thrilled the Twittering masses with his eight-and-a-half-hour filibuster of the Obama tax plan last month.

For more than a century, the filibuster has been how liberals do business. Why change things now?

Samuel P. Jacobs is a staff reporter at The Daily Beast. He has also written for The Boston Globe, The New York Observer, and The New Republic Online.