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What I Learned About Filibusters From Writing One

Continuing my previous post, in which I was going to write about my own experience with a filibuster as a Senate staffer, but never got to it:

Throughout the discussion of filibusters, I've argued that it's important that filibusters be real -- that Senators who want to block or delay action be forced to make some sacrifices of time or sleep to show the depth of their commitment, so that the filibuster is not merely a supermajority. Early in 1996, which was the last year I worked for Senator Bill Bradley (and the last year of his final term), there was a brief period when the Republican majority seemed committed to ending its laid-back attitude. Bob Dole was in his last days as majority leader, and was on the verge of losing control of the institution because you can't simultaneously run for president and manage the Senate. Democrats were on the verge of taking control of the agenda, and the Republicans were reaching deep into the bag of parliamentary tricks to hold them back.

In this context, Senator Bradley decided to filibuster the Utah Wilderness Bill, which actually should have been called the Utah Development Bill. This legislation, similar to bills that have been negotiated and passed for most Wesern states, would have taken the vast acreage controlled by the Bureau of Land Management, and designated some of it as wilderness, opening the rest to development. The version of the bill that the Energy and Natural Resources Committee produced would have left, if I recall correctly, about 20 million acres of the most beautiful and untouched Utah landscape open to mining, roads and other development. Responsibility for fighting this bill fell to Bradley simply because he was the ranking Democrat on the committee's subcommittee on public lands.

Although he had been in the Senate 17 years, Bradley had never led a filibuster. And in the new environment, it seemed likely that the leadership would force him to show his hand, to hold the floor for at least the better part of a day to prove he was serious. Bradley had immersed himself in the bill and the background, but being Bradley, he wanted to be fully prepared. As the legislative staff, we needed to produce many hours worth of factual, readable material relevant to the bill. This wasn't my issue, but it should come as no surprise to anyone reading here that if you need a couple hundred pages of blather written on short notice, I'm your man. So while my colleagues worked on the legislative details, I spent a weekend with my desk heaped with books and reports about the declining significance of mining to the Utah economy, the geology of the Kaiparowits Plateau and other landmarks, and lyrical books about the west by Bernard deVoto, Terry Tempest Williams, Patricia Nelson Limerick, and others, always following the rule of thumb of every 10th-grader writing a term-paper: Why quote just a sentence when the whole paragraph is eloquent?

In the end, I think they forced Bradley to speak for about six hours before calling a cloture vote. The most memorable moment in the whole debate came near the end, when Senator Hatch of Utah rose to make the case for the development of his home: "If I hear one more word from the Senator from New Jersey about the 'silence and solitude' of my own state, I think I'm going to be ill." Perhaps we'd overdone the poetics.

When the vote was called, Bradley didn't get just the 40 votes to sustain the filibuster, he got 49. One Democratic Senator (Pell of Rhode Island) always voted for cloture on principle, so that meant we would have had 50, on final passage, and with Gore breaking the tie, we actually had enough votes to defeat the legislation on a straight up-and-down vote. That was quite a surprise, and a tribute to my eloquence. (joke.)

I want to be careful in drawing generalizations about the filibuster from this one episode, which is now (to my astonishment) almost nine years old, and in unusual in certain respects, but it did shape my thinking about the process in several ways:

First, this is a classic example of an action that cannot be undone, where today's majority should be restrained because of the permanence of their action. If the areas that should be designated wilderness in Utah were open to development and mining, they would never be unopened to development and mining. Just as it was not entirely the prerogative of the current Senators and governor of Utah -- all of whom favored the bill -- to determine how much development should be allowed, it is not necessarily only the current congress that should have a voice in the result.

Second, a real filibuster is a high-profile action that raises the profile of the issue at hand and forces the votes to be more publicly accountable. Without a filibuster, the Utah Wilderness Bill probably would have passed quickly with close to 60 votes, with most Senators not wanting to challenge Hatch or his Republican colleague, Senator Bennett. Only the filibuster put it under the spotlight, made Senators consider their vote carefully and look at the details of the bill. The filibuster, if it is real, in the world of C-SPAN and live-blogging, is not a surreptitious anti-democratic device but a way of drawing things out into the daylight. (This is a significant difference from the Senate in the era of the anti-civil rights filibusters, when it's motto was like Las Vegas's, "What happens here stays here.")

Third, the most interesting thing about spending three days on the staff benches on the corner of the Senate floor nine years ago was that at the same time, Ted Kennedy was figuring out how to get around parliamentary obstacles (obstacles that he had not seen before, and he's been in the Senate since before I was born) to get a vote on the increase in the minimum wage, and also at the same time Senator Dorgan was figuring out how to get a vote on his resolution to prevent the Republicans from plundering Social Security to pay for tax cuts. (I can't remember the details, but it was some early version of the "lockbox" of 2000 -- contrived, not perfect policy, but a good political tactic.) Later that week the Senate passed the minimum wage increase, the only increase between 1990 and today, and a few weeks later Dole stepped down. I've always felt that was the week that the Gingrich tide finally turned, and the Democratic minority in effect became the majority. The filibuster on the Utah bill played a relatively small part in the week's events, but it was essential. In effect, we were holding back the Republican agenda while Kennedy and Dorgan were substituting their own.

Opponents of the filibuster argue that without it, the Senate would be a responsive, majoritarian institution. In fact, it would be a tightly controlled institution, like the DeLay House, just a lot less representative. The right of unlimited debate and unlimited amendment is a critical part of what makes the Senate an open institution, and losing it would be very costly to progressives at any time when they did not have complete control of both houses and the presidency.

Posted by Mark Schmitt on April 12, 2005 | Permalink

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Comments

I enjoyed this post, but what I ultimately got out of it was that Senator Hatch, as the kids say, totally owned you.

As I read the last paragraph, I couldn't help but think that I know several Democrats, big D, who oppose the filibuster because they see themselves as democrats, small D. But how much sense does it make to decry the loss of an anti-democratic tool when it occurs in the Senate - already one of the most anti-democratic institutions you could design, with two Senators for each and every state?

I respect the principles of the idealists, but the Senate will never reflect "the will of the people," no matter how you draw up the rules. It's not in the nature of the institution.

Posted by: Steve | Apr 12, 2005 4:32:46 PM

"First, this is a classic example of an action that cannot be undone, where today's majority should be restrained because of the permanence of their action."

Well, at least I know the experience that helped shape your attitude now. :-)

If your concern is defending the status quo, then the filibuster is indeed a dandy thing. Defending land managed by the BLM benefits from the filibuster. Defending Social Security benefits from the filibuster. Enacting universal health care does not. Enacting stronger labor law does not.

The fulcrum of the argument is whether or not liberalism needs more help in the long term in defending things or enacting things.

"Only the filibuster put it under the spotlight, made Senators consider their vote carefully and look at the details of the bill."

You might want to look at Tom Harkin's 1995 proposal to kill the filibuster.

It involved a two week sliding scale of the necessary votes to get cloture. At first, you need 60 votes. A week later it falls to 55 votes. Two weeks later, you only need 51 votes.

It seems that type of measure would offer a delaying mechanism that would both enable extended debate on the Senate floor, and also enable extended debate outside the chamber in places like the blogosphere, while still allowing legislation to come to a vote without a super-majority requirement.

Posted by: Petey | Apr 12, 2005 4:40:29 PM

The sliding scale lacks one advantage that the current filibuster has going for it, which is drama. You know not only that a sliding scale cloture vote is going to succeed, you know when it will succeed. Which makes it eminently ignorable.

Of course, the Senate's "two track" rule prevents the modern filibuster from living up to its entertainment potential, too.

Posted by: Kagro X | Apr 12, 2005 9:03:53 PM

Mark I want you to check out my recent Brooks piece and give me some feedback, as I am a fan.

Posted by: Gotham Image | Apr 14, 2005 1:46:11 AM