The Filibuster: How Slow Can You Go? (Essay)

An essay on Robert Caro's The Years of Lyndon Johnson: Master of the Senate. 

The southern bloc of the senate hides behind procedure. Having learned that racist arguments don’t play well in the rest of the country, southern senators now argue against civil rights on legal grounds, one level abstracted from the discrimination issue (192). Although these arguments are less disturbing, the force behind them is not their persuasiveness, but the fact that the senate must listen to them indefinitely. This method that the south employs, the filibuster, is almost as controversial as the ends for which they use it. To defend the filibuster against the growing pressure to repeal it, the south uses yet more procedural arguments—arguments which touch on the very purpose of the senate. The south wants us to think as little as possible about race. Instead of discrimination, we ought to think about the extent of the federal government’s power over the states, and instead of the filibuster, we ought to think about the extent of the senate majority’s power over the minority bloc.

To the senators who are growing tired of the filibuster, Russell makes the following argument: if the federal government threatened their state with overreaching laws, wouldn’t they want to “use every means in their command to fight it” (917)? I worry that Russell has a point. The filibuster is deeply tied to Jim Crow, but suppose it wasn’t—suppose, for example, that a federal government run by southerners tried to force the north to adopt segregation: wouldn’t we want the northern senators to be able to filibuster? If the south wants to make the filibuster problem into a procedural one, then I will take it up on those terms. I will separate my emotional reaction to segregation from the question of whether indefinite delay is a justified legislative procedure. My question, then, is this: is the filibuster wrong in itself, or only in what it’s used for?

To answer this, we must first consider whether the filibuster is consistent with the senate’s purpose. But this purpose is hard to define. In a government of the people, the senate was created out of a distrust of the people. The framers distrusted the people partly because they can lead themselves astray. But if they do, the senate can set them back on the right path, or at least give them the time they need to do it themselves. The senate can do this because it is, to a great degree, independent of the people. The senate uses its independence to practice negative power, preventing others from changing things that shouldn’t be changed. But on the most basic level, the senate was given positive power, the “legislative powers” of the United States (art. 1, sec. 1). It wasn’t meant to stop laws, but to pass them.

Along with legislative powers, the framers also gave the senate a number of safeguards against the passions of the people. It takes six years to replace all of the senate’s members, so in any given election year, the people can’t overturn the senate. If a problem lasts a year or two and then fades, the senate is unaffected. Only if it lasts for four or six years is the senate compelled to acknowledge it. The same goes for each individual senator. A House member, in office for only two years, must be in touch with the changing passions of the people in order to get re-elected. But a senator, with at least six years of office ahead of him, can consider the effects that legislation will have on the next few decades, which is a necessary consideration in cool, calculated deliberation. A newly elected senator can delay something for five years—more if he’s re-elected—and still have a say in what happens when the bill comes to a vote. The senate also requires its members to be at least 30 years old, 5 years older than the House’s requirement. Older people are presumably wiser, or at least less susceptible to transient waves of political and social pressure. The framers wanted the senate to be able to deliberate carefully without immediate political consequences, so in 1787 they gave it the power to do so. The senate, before one even considers its rules and mores, can stay cool when the people, the House, and the executive get hot.

The changes that took place within the senate have the same cooling effect. Besides the seniority and committee systems, the filibuster is the senate’s most important internal rule. This is true on an emotional and practical level. As for emotions, senators treat unlimited debate as a sanctified right of the senate. Suggesting to throw out the filibuster means insulting their status as a senator. “It was cloture that crucified Christ on the cross,” one senator said (102). And as for the filibuster’s practical significance, if you want to stop a bill, no other strategy compares. Seniority rule and committee organization both have long term effects on how the senate works, but only the filibuster can stop a bill once it has majority support and is put on the floor. And a senator doesn’t even have to wait that long; senators have many opportunities to start a filibuster before the final vote. All bills have to get voted on at least three times (895): first to go onto the calendar, then to come off of the calendar and onto the floor, and finally to decide whether to send it from the senate to be signed into law (plus the countless other votes that may occur if the senate argues over amendments). At each of these junctures, an obstinate senator or group of senators can start a filibuster. To succeed, they will need only one third of the senate on their side, because by Rule 22, cloture requires two thirds approval to pass. Until then, a filibustering senator is bulletproof. Once they’ve begun to filibuster, moreover, senators don’t even have to keep their speeches on the topic of the bill (92). And perhaps worst of all, the filibuster is self-sustaining. Any proposal to change Rule 22 is immediately met with a filibuster; it’s “the ultimate legislative Catch-22” (93).

The structure of the senate as it was written in the constitution, ie., without the filibuster, is a sufficient dam against public passions. Dams channel great quantities of water in a slow and controlled manner. If the senate acted in an analogous way, it would have made popular legislation weaker, or even delayed it for a few years to let the people realize their mistake. But the senate is a dam with no outflow. And because of this, despite the immense pressure from the executive and the electorate, the senate’s dam has let no water through. Thus, by the late fifties, the United States has been in an 82-year drought. Not a single piece of federal civil rights legislation was passed in between the years of 1875 and 1957 (689).

Thanks to the senate rules, refinement has become obstruction. Obstruction is a craft that the south has mastered. When Johnson takes advantage of a loophole to make a three-day “legislative day” in which civil rights cannot progress, he practices obstruction (797). And when he moves to table the motion that would have amended Rule 22, he nearly personifies it (857).

The senate was given the power to move cautiously. But the senate’s rules (like the filibuster) and its mores (like the reverence for “unlimited debate” [213]) turn cautiousness into lethargy. The framers fashioned the senate with armor, armor that was written in the text of the constitution. The senators, in turn, gave themselves another layer of armor. This layer was written, not in the constitution, but in the procedures of the senate and the hearts of its members. The constitutional armor protected the senate from the people, and the procedural armor protected the smaller part of the senate from the larger. The senate took its directive—combatting the tyranny of the majority—and duplicated it within its walls. The senate now risks becoming the opposite extreme: a tyranny of the minority.

But perhaps I’ve overstated my case. It seems only fair that the minority have some negative power in the senate. The president, after all, has such a power—the veto—which also requires two thirds of congress to override it. How is the filibuster any different? Moreover, if a particular faction in the senate is strong enough to survive 90 years of elections, and still retain at least one third of the senate—then the problem lies not in the procedures of the senate, but in the makeup of the people.

However, these arguments fail at the outset. The filibuster is not a negative power, at least not in the same sense as a veto. The difference between the veto and the filibuster is made most clear when Russell makes a chilling threat: if the liberals try to change Rule 22, the senate will have to review all 39 rules, one by one. If they try to take the filibuster away from him, he will use the filibuster to keep the senate disfunctional indefinitely. A veto stops one bill, but a filibuster creates a “logjam” of all the bills that are necessary or soon to expire (216). Russell’s threat is antithetical to the nature of a legislature. Regardless of what one thinks about a particular type of bill (like civil rights bills), there are always other pieces of legislation that need to be passed, like disaster relief or simply funding the government. Any good will that a senator has, or any desire he has to be re-elected, the south takes advantage of it. New York’s senators, for example, need the Niagara bill passed, so the south uses it as leverage to force them to give up on civil rights (933). Bills like this one are “weapons in the southerners’ hands” (878). The south has all the time in the world; the rest of the senate does not. Presidential administrations and other senators have bills that they want passed, so the threat of the filibuster makes them sweat. The negative power of the filibuster has so wide a range that it seeps into other areas of legislation, forcing the rest of the senate to surrender on the one front on which the south refuses to budge. Rule 22 doesn’t just mean that a filibuster must be broken in order for a particular bill to succeed, it means that a filibuster must be broken in order for the senate to function at all.

All the south needs is one third of the senate, and it can practice this chokehold on the other two thirds. The south doesn’t quite have these numbers on its own, but the conservative republicans, and later the western democrats, are willing to support them. Presumably this is out of constitutional principle, but often it is for more pragmatic reasons. Senators who are undecided about civil rights are seduced by the 20-some votes that the south has to offer them. Southerners gave Taft their votes on isolationism (even though most were interventionists), and in exchange they got Taft’s people to oppose civil rights (216). Johnson later does a similar quid pro quo with the northwest (909). The south’s one-third control of the senate doesn’t tell us that they represent a similar minority of the US public—it only tells us that they are skilled at making deals behind closed doors.

So far we’ve seen that the filibuster is better in theory than in practice. But in one important respect, the filibuster is better in practice than in theory. Someone familiar with Rule 22 might get the false impression that a senate minority will use the filibuster every chance it gets. Any political group with more than one third but less than one half of the senate on their side—for example, the minority party—can start a filibuster and not have it voted out by cloture. But this is not what happens. Senators form connections with one another, and depend on one another with something like trust. If I filibuster everything when I’m in the minority, what can I expect to get done if my party wins the majority next session? Surely the enemy will return the favor, filibustering every bill that I try to pass. Plus, any group that depends on the filibuster has a unique incentive to use it sparingly. The south, for example, tends to filibuster only civil rights bills. If they filibuster everything else that they oppose, the people and the rest of the senate will get tired of the tactic, and the liberals will gain the necessary votes to impose cloture or amend Rule 22.

In theory, legislators either support bills or they oppose them. But southerners, unwilling to watch a civil rights bill pass and unable to make it fail, create a third option: delay. In the short term, they want to immobilize the senate until the other side is forced to give up. But what’s the south’s plan for the long term? The very same. For segregationists, Caro argues, “delay could mean victory” (877). Any progress that the liberals make in one session doesn’t carry over to the next session, so the south can do the same thing every year. If, in a given session of Congress, civil rights doesn’t succeed completely, then it fails completely.

Perhaps they hope that this will work forever, and that eventually the north will leave the south alone. This is what the south has wanted for over a century. The senate (and, I add, the filibuster) is “the south’s unending revenge…for Gettysburg,” says Senate historian William S. White (94). Since reconstruction, each time a civil rights bill has come to the senate, the south has struck it down. Each time, they treat the call for civil rights like a fleeting passion of the people. They probably think that they are doing their senatorial duty by giving this passion time to cool.

But the senate’s cooling power isn’t just about delay: it’s about educating the people. When FDR tried to pack the courts, he failed because the Senate started a months-long radio campaign arguing against the proposal (61); and when McArthur sought after the presidency, he failed because the senate held long, probing hearings to extinguish his popularity (373). Both of these men had high ambitions that could have been disastrous for the country. The senate did not fight either of these men directly. It only delayed, and in delaying it gave the people the time and the arguments they needed to see the full implications of what FDR and McArthur were trying to do. This is the senate exercising its cooling power correctly.

The same doesn’t hold for the southern bloc’s opposition to civil rights. The people have had plenty of time—82 years, in fact—to look at both sides of the argument and make their decision. In FDR’s case, the people supported his plan to add more justices, but the senate made them think long and hard about that idea, and they realized it was a bad one. But if the senate’s delay had no effect on the people’s beliefs, and in the next election they still wanted more justices, and likewise in the election after that, and in the one after that… If, for decades, the people continued to say that they wanted more justices, I don’t know what kind of body the senate would have to be to deny them that. It would not be a democratic one. If the senate still contended that the plan was wrong despite its continued popularity, then they would have to admit that they had failed their senatorial duty to educate the people.

The senate usually educates the people through debate and deliberation, which can take the form of radio campaigns, publicized hearings, or on-the-floor arguments. The filibuster as practiced is none of these. During a filibuster, the senate forfeits its educational role. Senators are prepared to recite “the telephone book or recipes for pot likker;” one of them churned out a 40-page “magnum opus” whose purpose was length, not substance; and often senators resort to simply “rantin’ and ravin’” (921). No one in the senate actually listens to these speeches. Words spoken during a filibuster are meant to fill time, not to mean anything. Calling the filibuster a consequence of unlimited debate is contradictory. In a filibuster there is no debate at all. No views are being exchanged and no questions are being addressed.

The filibuster cuts off debate in the present, but it also keeps it from happening in the future. The rest of the senate has learned not to push for civil rights because they know that the south will filibuster and are convinced “that the south could not be beaten” (893). In the end many senators were too “intimidated” by the south to move the legislation forward (893).

Johnson is not one of those senators. He is cautious with the southerners, but he isn’t afraid of them. He knows how to push them, and when. Johnson is master of the senate because he is a master of timing. He knows when it’s time for the senate to crawl, and he knows when it’s time for it to sprint. And when he decides that it’s time for the senate to move fast, it’s never moved faster. Under his leadership, the senate passed 90 bills in under five hours (598). Of course, he could only move at this pace for small bills, not civil rights. But passing anything at this pace makes the people, the press, and other senators regain hope that the senate can be a functional body. Observant senators would have seen that this was only possible because Johnson set time limits for debates, a procedural power that the senate rarely used. Without changing any of its rules, Johnson began to change the senate’s culture.

Thanks to Johnson’s speedy passage of small bills, liberals noticed that a crack in the dam had begun to form. The culture of unlimited debate had a limit, and the senator from Texas had found it. The crack grew more apparent when the senate passed the Civil Rights Bill of 1957. Its tangible effects were minimal but its symbolic importance can hardly be overstated. It was the first bill of its kind since reconstruction. When Johnson “breaks the virginity” of the senate (993), he does so not by breaking a filibuster, but by convincing the south not to start one.

Although the southern bloc voted against the Civil Rights Bill, it was still only with their implicit support, their agreement not to filibuster, that the bill passed (902). This is why the passage of the bill is not proof that Rule 22 is weak. Let no one get the impression that the filibuster is a justified procedure because we saw someone be able to work around it. The fact that a political genius like Johnson can navigate it doesn’t mean that the filibuster leaves the senate any room to move. If anything, Caro’s book is evidence that only a political genius can pass a bill despite the filibuster. It’s passage also depended on a number of factors besides Johnson’s genius that nobody could repeat: southern hopes that Johnson would become president after passing the bill, the jury amendment and the amendment to that amendment, and the belief on both sides that the other side had the necessary votes on cloture. This last circumstance is perhaps the most crucial. Johnson only succeeds at convincing the south to refrain from filibustering because he tells them that the liberals have the votes they need for cloture. This was far from the case, which the senate learns in 1960, when the liberals couldn’t even pull together a majority to vote for cloture (1034). Think of the confidence that the south regained after that vote! Even if the tyranny of the minority was briefly subverted in ‘57, it wasn’t overthrown.

In order to say that the filibuster is justified, one must first ignore its end: maintaining white supremecy. Fine. But one must also ignore the manner in which senators used it: turning it into a threat and an offer, initiating it on a motion to bring a bill on or off the calendar, and carrying it out by making off-topic speeches to an emptying chamber. I’ve tried to judge the filibuster without considering the end that it’s used for, but I cannot ignore the way that it’s used, because this is still a procedural question, unrelated to racial discrimination.

But if you allow me to bring historical circumstances back in, you might share my surprise to find that the historical circumstances give the filibuster some merit. Detrimental as the filibuster was to the functioning of the senate, it might have been necessary for the cohesion of the country. If in 1957 cloture was imposed and a strong civil rights bill was passed, the southern states would have revolted. The south thought the rest of the country needed time to cool down, but it was really the south that needed time: time to warm up. This consideration does not change my views on the filibuster, but it does give me grounds to think that a moderate like Johnson, not a radical like Douglas or Lehman, was what the senate needed. And whatever faults Johnson had, he managed to do what no liberal could: overcome the filibuster. It wasn’t an absolute victory, and perhaps it wasn’t even a lasting one, but it was victory nonetheless. The more one knows about senate history, the more incredible what I’m about to say will seem. At the start of 1957, the filibuster was invincible. By the end of 1957, it wasn’t.

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Caro, Robert A. Master of the Senate. New York: Knopf: Distributed by Random House, 2002.
United States Constitution, 1787