The debate over the uses and abuses of Senate filibusters is making a lot of senators uncomfortable on both sides of the aisle. And it's making a lot of other people uneasy with their own feelings about filibusters, pro and con.
Not so long ago, conservatives were defending filibusters as essential to the Republic while liberals regarded them as anathema. Today, both shoes on are on the other foot.
Polls show only a minority of Americans are willing to change the rules so that filibusters can be stopped with just 50 votes instead of 60, even on judicial nominations. But when asked whether judicial nominees deserve an up-or-down vote, big majorities say yes. What's a lawmaker to do?
Officeholders generally don't like issues with no place safe to stand, especially when they gain as much visibility as the so-called "nuclear option" has in the Senate. Some are even spooked about calling it the "nuclear option."
The gist here is that Republicans want to be able to confirm President Bush's judges with a simple majority because they occasionally have trouble getting enough Democratic votes to reach 60. Normally it takes even more votes to change any Senate rule (two-thirds, or 67 votes). But the nuke option puts this notable change into effect by exploiting the vice president's constitutional power to preside over the Senate, rule on procedural questions and break ties. In this case, Vice President Dick Cheney says he's ready to do all three.
This is rather radical behavior by Senate standards, especially for political conservatives who have championed the filibuster or who tend to be sticklers for rules and procedure. No wonder some of President Bush's supporters have balked at this gambit, in the Senate and out. What happens, they ask, when the pendulum swings and the Democrats get back in?
The issue is at least as awkward for lots of liberals, whether they are senators or not. Sure, they can call Cheney's intervention an arrogant abuse of power that tramples on the rights of the minority party. But boil it all down and they're still stuck defending the filibuster, the means by which the minority impedes the majority and the quintessential anti-democratic weapon in resistance to change.
Not so long ago, the filibuster was practically synonymous with Southern resistance to desegregation. The last filibuster in the grand style was staged in 1964 by Southern Democrats battling the Civil Rights Act. It ran for 75 days in an effort to block or dilute the measure that the House had passed by better than 2 to1. The filibustering old bulls of that era were regarded as malefactors of the worst order by progressives in both parties and by much of the general public.
In fact, for many Americans, the repugnance of that particular filibuster cost the device its legitimacy. Walter Lippmann, the establishment liberal columnist, had long defended filibusters as a critical protection of minority rights. He did so even when a filibuster blocked an anti-lynching bill in 1938. But in 1964, Lippmann did an about face.
Awaking late in life to the full realities of segregation, the columnist wrote that the filibuster "cannot be justified morally as a device for preventing a majority from attempting to redress grievances which have been outlawed under the Constitution for more than a hundred years."
Today, many could empathize with Lippmann's dilemma, only in reverse. After a lifetime of thinking the filibuster odious, these people find themselves with no other means of opposing appointments and legislation they abhor. Should they renounce this last remaining weapon and surrender? Or should they take up the last cudgel and put their own majoritarian principles aside?
There is no easy answer, but there is this to say about the Senate experience of the 1960s and 1970s: When confronted by the obstacle of the filibuster in that era, those with a cause went about overcoming the filibuster the hard way. They put together the votes over time and across party lines and they did not seek a shortcut.
In the Senate in 1964, President Lyndon Johnson and Majority Whip Hubert Humphrey worked closely with Republican leader Everett Dirksen to build a bipartisan coalition for the civil rights bill — and for the cloture petition that would end the filibuster. Dirksen would eventually bring all but a handful of his colleagues with him to support both cloture and the bill.
The strategy was to build the coalition slowly, allowing the filibuster itself to drag on for months and attract enormous national and even worldwide attention. In the end, there were 71 votes for cloture, representing big majorities of both parties, and the bill's passage was assured.
It can be argued that the acceptance of the 1964 Civil Rights Act by the nation at large was directly related to the size and the bipartisan composition of that historic cloture vote. The same could be said for the Voting Rights Act that followed in 1965. It was crucial that the supporters of civil rights took the time to organize across partisan lines, build their strength and, just as importantly, wait for the opposition to show its weakness.
The patience of the anti-filibuster forces would yield additional dividends a decade later, when the Senate in 1975 mustered the two-thirds vote needed to change the rules on cloture and lower the requirement from 67 votes to 60 — where it has remained since.
Coalitions built in this gradual and bipartisan fashion make the best foundations for changes that will be accepted by all concerned over the long haul. The best proof is that we now look back at both the Civil Rights Act of 1964 and the filibuster rule change of 1975 and wonder that they once seemed so impossible.