oldStatesman
Cybernaut
They did not call it a filabuster - indeed, they wanted the debate to be able to go until finished. The term became popular in the mid 1800's. The founders wanted ways to protect minority interests; that is the whole point of the Bill of Rights. Try reading the writings of Publius, Hamilton, Madison, Mason, Adams, et al to understand this.ybbor said:@oldStatesman: i challange you to find any evidance the founders intended for a filibuster (and i mean actual broad base support, not some random delegate from new jersey in a letter to his 2nd cousin once removed)
Here is an excerpt from the US Senates web site on the history of the filabuster:
Here is a good article on the issue; it takes on both sides.Filibuster and Cloture
http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm
Using the filibuster to delay or block legislative action has a long history. The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.
In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue.
In 1841, when the Democratic minority hoped to block a bank bill promoted by Kentucky Senator Henry Clay, he threatened to change Senate rules to allow the majority to close debate. Missouri Senator Thomas Hart Benton rebuked Clay for trying to stifle the Senate's right to unlimited debate.
Three quarters of a century later, in 1917, senators adopted a rule (Rule 22), at the urging President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture." The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, until cloture was invoked after a fifty-seven day filibuster against the Civil Right Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or sixty of the current one hundred senators.
Many Americans are familiar with the filibuster conducted by Jimmy Stewart, playing Senator Jefferson Smith in Frank Capra's film Mr. Smith Goes to Washington, but there have been some famous filibusters in the real-life Senate as well. During the 1930s, Senator Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for "pot-likkers." Long once held the Senate floor for fifteen hours. The record for the longest individual speech goes to South Carolina's J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.
Nuclear War Games
News: Each side in the filibuster debate is spinning its own version of Senate history.
By Michael Scherer
http://www.motherjones.com/news/update/2005/04/filibuster.html
April 11, 2005
Several weeks ago, Harry Reid, the top Democrat in the Senate, gathered reporters on the Capitol steps to issue a warning to Republican Majority Leader Bill Frist. The proud history of the republic, Reid advised, would not look kindly on Republicans if Frist were to revoke the Democrats' right to block the presidents judicial nominees, as he has threatened. "President Bush and the Republican leadership want to eliminate a 200-year-old American rule saying that every member of the Senate can rise to say their piece," Reid said, referring to Frists plans to abolish the filibuster, a move with such far-reaching implications for the senate and the federal judiciary that lawmakers call it the Nuclear Option. '"That's not how America works."
Moments later, Frist's office released a response deploying the same historical reasoning to reach the opposite conclusion. Democrats, he said, were the ones violating Senate tradition. "I am committed to getting the work of the American people done in the Senate," Frist rejoined. "The solution is simple: return to 200 years of tradition and allow up-or-down votes on judges."
And so a high-stakes battle was joined, with nothing less than the future of the judiciary at stake, each side claiming the support of history and tradition, and each accusing the other of abusing its power--the Republicans to ram though extremist nominees, the Democrats to obstruct, for partisan purposes, the proper functioning of government. Depending on which view ultimately gains more traction with the public, the outcome of this fight could also have important ramifications for the 2006 and 2008 elections.
But with so much confusion over the issues, the actual historical facts are ripe for manipulation. "Both sides wish to justify their actions by referring to the other side's actions as unprecedented," says Sean Rushton, the director of the Committee for Justice, a business group that has purchased television ads to attack Democratic opposition to judicial nominees. "When you start getting into arguments of Senate precedent, I don't think many people in the media, let alone the world at large, have a handle on these issues."
So, who holds the historical high ground? Scholars say that both sides are fudging the facts. Democrats, who hope to paint the filibuster as an everlasting constitutional right, are ignoring the many key changes to Senate rules over the last century. But Republicans are playing fast and loose as well. They have claimed, falsely, that there is no precedent for the Democrats blocking of Bush's nominees. In fact, the most unprecedented factor in the current debate does not concern the filibuster itself. Rather, it is the novel set of parliamentary maneuvers Frist's staff has proposed to undermine the filibuster. If acted upon, the Nuclear Option would mark an epochal rupture in the long tradition of cooperation within the nation¹s highest legislative body. "If they did it, there is no stopping it. The majority could use the tactic to eliminate all filibusters," says Catherine Fisk, a Duke Law professor. "If they decide that respecting minority rights is no longer important, it could mean a very dramatic change to how the Senate operates."
All indications are that Frist, if he decides to go nuclear, might push the button as soon as late April or early May. The filibuster allows the minority party to prevent up-or-down votes on judicial nominees by extending debate (or, in most cases, merely by threatening to do so). Republicans, with 55 seats to the Democrats 44, would likely win up-or-down votes; but it takes 60 votes to break a filibuster, a tally thats probably out of the GOPs reach. Thus Democrats can indefinitely block Bushs nominees. The first nominees to benefit from the abolition of the filibuster will be 10 Bush picks rejected by Democrats in the last congress as being ideological extremists and now renominated. And soon after that there may follow one or more Supreme Court nominations.
Senators have always found ways to delay votes by dragging out debate. The first use of filibusters dates back to 1790, when southern senators successfully put off a vote to locate the first Congress in Philadelphia rather than Washington. The southern Senators kept talking until a rainstorm passed and an ailing Senator, the swing vote, could be carried into the chamber to cast his ballot. According to a 1997 history of the filibuster by Fisk, debate was used repeatedly in the 1800s to delay votes on the Bank of the United States, the censure of President Andrew Jackson and even patronage appointments. By the end of the century, the Senate had firmly established the rights of Senators to take the floor and read from irrelevant books simply to gobble up time. "The Senate," says Ross Baker, a political scientist at Rutgers University, "was really the place where the minority was protected." Senators could shut down the Senate as long as they could keep talking.
Then came the crisis of 1917, when, with the United States on the verge of entering World War I, 11 senators filibustered a vote to arm American merchant ships. The popular outrage was so great that the Senate upended the ability of a small minority of Senators to filibuster. They proposed a version of the rule now known as cloture. As it was originally written, the procedure allowed a vote of two thirds of Senators in attendance to keep a minority of Senators from talking forever. Even with the new rule, however, Senators continued to seize the floor for extended shows of opposition. In 1935, Louisiana Senator Huey Long, furious about a proposal to strip the Senate of the power to appoint patronage positions, spoke for more than 15 hours on the Senate floor, reading, at one point, a recipe for fried oysters. The late South Carolina Senator Strom Thurmond outdid Long's record by nearly nine hours in 1957, railing against the Civil Rights Act until his doctors warned he might sustain kidney damage. (Thurmond outlasted even Jimmy Stewart's Mr. Smith, who in Frank Capra's famous movie managed about 23 hours.)
The early 1970s brought the creation of a new time-saving way of dealing with unlimited debate, the so-called "stealth filibuster." For the first time, Senators who wanted to block a vote by extending debate no longer had to actually take the floor and speak. In an effort to preserve valuable Senate time, the threat of a filibuster was now considered enough to stop legislation or a nomination in its tracks, at least until a cloture vote. Around the same time, Democrats led a change in the number of votes required for cloture, dropping it from two-thirds of the chamber to 60 votes. As a result, the frequency of filibusters has soared in recent years, becoming both a bane and a godsend for Democrats and Republicans, depending on which party was in the majority at the time. It is this stealth filibuster that Democrats now plan to use to block Bush's 10 renominated picks.
Both sides in the current debate find it convenient to ignore much of this history. The "200-year-old American rule" that Reid says allows each Senator to say his or her piece does not actually exist, as such, given that the cloture rule has been in place since 1917. To make things more complicated for Reid, his own party has a mixed record of supporting the right to filibuster. As recently as 1995, 10 sitting Democratic senators, including Connecticut's Joe Lieberman and former presidential nominee John Kerry, voted to allow a bare majority of Senators to end a filibuster, a proposal that, in its effects, closely mirrors Frist's current plan. At the time, they were enraged by Republicans success at filibustering much of President Clinton's legislative agenda--everything from campaign finance reform to health care reform. Their effort garnered only 19 votes.
But if Democrats find the historical record somewhat disconcerting, Republicans find themselves negotiating an even greater minefield of historical fact. Frist's "200 years of tradition" allowing up-or-down votes on judges is a figment of a partisan imagination. Frist's Republican colleagues bottled up dozens of Clinton nominees in committee during the late 1990s, denying or delaying many up or down votes. Once on the floor, Senators often placed holds on the nominees, effectively preventing votes. Republicans and Democrats also tried regularly to prevent cloture for judicial nominees--at least 12 times since 1980, according to the Congressional Research Service. As recently as 2000, Frist himself voted to deny cloture to a Clinton nominee, Richard Paez. According to a press release at the time from Frist's colleague, Sen. Bob Smith (R-N.H.), the effort was a "filibuster" designed to "ndefinitely delay the confirmation of Paez."
While all of these efforts to filibuster judicial nominees by denying cloture eventually failed, there was one notable success. In 1968, a group of more than 40 Senators, led by Republicans, blocked the nomination of Abe Fortas for chief justice of the Supreme Court, in part because of an ethical controversy over a speaking fee Fortas accepted while in office. Afterwards, President Lyndon B. Johnson withdrew Fortas from consideration. At the time, Senator Robert Griffin, a Michigan Republican who opposed Fortas, championed the right to filibuster judicial nominees. "It has not been unusual for the Senate to indicate [disapproval of] a nomination by just making sure that it never came to a vote on its merits," Griffin said.
Frist and other Republicans now claim the Fortas filibuster was not, in fact, a filibuster. The reason: There was never a recorded vote showing that a majority of the Senate would have approved Fortas had a vote been allowed. The congressional scholar Norman J. Ornstein has likened this reasoning to a killer who claims, "Yes, I shot him, but I can't be charged with murder because he would have died of cancer anyhow."
What is significant, and potentially unprecedented in the current standoff, is the means by which Frist plans to junk the filibuster. Martin Gold, a former Frist aide, laid out the strategy in a recent Harvard Law Review article. (Gold avoided the term Nuclear Option, coined by Republican Senator Trent Lott, preferring to call it the innocuous-sounding Constitutional Option.) It could work like this: Republicans would seek a parliamentary ruling by the Senate presiding officer, presumably Vice President Dick Cheney, that filibusters of judicial nominees are unconstitutional. If Cheney agreed, Democrats would then object. To overrule the objection, Republicans would only need a majority vote, effectively making the change in precedent immune from a filibuster attempt.
The problem with this, say scholars, is that the Senate rule that governs filibusters, known as Rule XXII, already has a clear prescription for how to change the way the Senate handles filibusters--a vote from "two-thirds of the Senators present and voting." The Nuclear Option, they say, skirts the actual Senate rulebook with a fancy parliamentary maneuver. "They are trying to change precedent without changing the rules," explains Sarah Binder, a scholar at the Brookings Institution who has supported other efforts to restrict the use of the filibuster, which she believes has been abused by both parties to obstruct the work of the Senate. "I think you should change the rules. You shouldn't just reinterpret them as you see fit." Republicans point out that in the past Democrats, led by Senator Robert Byrd of West Virginia, have employed such maneuvers to set precedents. But never before has a precedent been set that so directly, and dramatically, undermines a rule already on the books.
Historical questions aside, both sides have much to gainand losepolitically from this battle. Democrats are threatening to slow or halt Senate business in retaliation should Frist invoke the Nuclear Option, a move that carries its own risks. "Generally, wars are blamed on who starts them," says Larry Sabato, who directs the University of Virginia¹s Center for Politics. "I think Republicans might be blamed for the larger political war."
Frist, who is preparing a run for the White House in 2008, will not be around long to experience the aftermath, leading some to worry that he may be acting carelessly to appease the GOP¹s base voters and boost his own prospects. The concern has been hinted at by several of his Republican colleagues, who might mount an effort to prevent Frist's gamble. "Unlike previous floor leaders of the majority party, Frist is just passing through," explains Rutgers' Baker. "That's the fear: That his presidential ambitions will overwhelm his loyalty to the institution of the Senate."
But First will almost certainly deny any such carelessness if he mounts his Presidential campaign. He knows well that the peculiarities of history can be easily confused. As he told his colleagues during a 2003 hearing to consider changing the filibuster rules, "In Washington, it matters not whether you win or lose, it's where you place the blame."
http://www.motherjones.com/news/update/2005/04/filibuster.html
Michael Scherer is the Washington correspondent for Mother Jones.
