Senate Rule XXII has changed slightly over the past 70 years – it now only takes three-fifths of the panel to end the debate – but the Senate remains a graveyard for bold laws. With President Joe Biden advocating the most ambitious domestic reform agenda in more than half a century, Democrats inside and outside of Congress are calling for the filibuster to be abolished.
Instead, Biden has no votes for it approved an extremely humble compromise – a return to the 1949 status quo known today as the “talking filibuster” to replace the current system in which the minority party can force the majority to withdraw a bill by simply signaling that it can muster the votes to defeat Cloture, essentially pushing it to the back of the Senate and letting it die silently there. Senator Joe Manchin from West Virginia has spoken out strongly against the abolition specified that he could accept a return to the talking filibuster.
Whatever you call it, the filibuster was a political and moral disaster. The proposed compromise appears to be a more humane use of the death penalty. Still, it’s worth following the talking filibuster – just barely. The public would benefit if the newer version of LBJ tied itself in knots around 1949 to justify preventing majority rule on the most pressing issues before the nation, and history would record those arguments rather than just admitting the arguments and laws to die quietly like they do today.
A certain majesty took part in the filibuster of yore, with immense stakes hanging in the scales while each side held tight to its position. Who would weaken first? Fifteen years after these two rookie senators had defined themselves by the opposing sides they had adopted for reforming the filibuster, they would come together as president and majority whip to defeat the filibuster for good and end the 1964 civil rights. That was another plus from the old system: you could win. And even if you haven’t, you have provided great legislative theater to the nation from time to time.
The Capitol Hill reporter William White, A parliamentarian once described the Senate as “the south’s infinite revenge on the north for Gettysburg”. The South Democrats mastered and perfected the fine arts of legislative warfare in the face of efforts by the North to end the feudal state of blacks.
At the start of each new term in the 1950s, Humphrey or one of the other Senate Liberals proposed a package of civil rights measures, usually including laws against lynch and election taxes, as well as the establishment of a Fair Employment Practices Commission to prevent hiring discrimination . As soon as a motion to examine the measures was proposed, Russell would go into action as Napoleon sent his marshals to the enemy flanks. Usually he organized four two-man teams, each supposed to monopolize a four-hour discussion block. His men could maintain this regime for weeks if necessary. As soon as Russell saw exhausted opponents leaving the chamber, he would demand a quorum. If less than half of the members – then 48 – remained, the house would adjourn, wasting another day and further despairing the other side.
Since Russell ordered his followers to stay away, the Northerners had to stay to form a quorum. Recalled Illinois Liberal Champion Paul Douglas, the North, exhausted, would call for a cloture vote, “and then stumble into the Chamber for a final showdown, red-eyed, distraught and tired.” The southerners, on the other hand, would “appear slender and well-dressed, with sparkling eyes and rosy cheeks.” The Cloture vote would fail and civil rights legislation would disappear for another two years.
The Liberals lacked the discipline or the numbers for this game. One of the few times when Republicans and Southern Democrats were preparing to overturn Truman’s veto on the McCarran-Walter Immigration Act in 1952, Senator William Langer (RN.D.), 66, began yelling and croaking for five hours wobbling on his feet, and at 5:13 am he turned to Humphrey to hand over the job. Langer got up to “I’m giving in” before collapsing; Humphrey caught him on the way down. Langer was carted off the floor on a stretcher and the veto was suspended between 57-10.
In the 1950s and 1960s, the Liberals proposed reforms of Rule XXII that would go much further to restore majority rule than the compromise proposed today. In 1951, Humphrey and nine others suggested maintaining the two-thirds requirement for the first 48 hours of debate and then moving to a majority in attendance for the next fifteen days – after which the debate would end. In 1961, Humphrey and minority leader Thomas Kuechel proposed that the Senate be allowed 15 days to debate after a cloture motion was submitted, and then to end the debate by a majority vote. After that, each senator would be given an extra hour. Neither measure went anywhere. Johnson himself, who acted as the almost all-powerful majority leader, defeated efforts to reform the filibuster in 1961 and 1963.
Everything changed in 1964. After a long delay and much opposition, President John F. Kennedy submitted an important civil rights law to Congress in the summer of 1963. The law would prohibit the unequal application of voter registration requirements, prohibit segregation in public institutions, authorize the US attorney general to enforce desegregation lawsuits, and much more.
By the time Kennedy was assassinated that fall, Johnson had become a far more passionate civil rights advocate than the President. He had always been a faithful servant, but never an acolyte of the filibuster’s cause; Now it cast a dark shadow over the great goal of his life.
When Richard Russell warned his friend and former protégé that he would cripple all Senate business – including a tax cut that LBJ was almost equally tied to – to block civil rights law, the president calmly said he was ready to postpone anything for one year, if necessary, to pass the Civil Rights Act. Johnson hired his majority whip, Hubert Humphrey, to defeat the filibuster and pass civil rights law.
Humphrey had spent his entire Senate career watching as his greatest hopes for the filibuster’s swarms were dashed. Like many of the Liberals, he had a grudging respect for the highest discipline Russell had imposed on his followers. Humphrey was determined to prove that liberals could win by the rules he despised. In a reflection of Russell’s tactics, in March 1964, Humphrey appointed a rotating group of four called the Civil Rights Corporals Guard to act as the whip of the whip. He divided his entire team into two groups of 25 people each, each of whom had to be present at all times on different days in the event of a quorum call. To ensure that no quorum call was left unsatisfied, Humphrey ordered the sergeant to evict the members from their beds if necessary. He even had members call the Washington Senators’ opening game with orders to return to the ground. The southerners had never seen anything like it. When Russell protested a daily newsletter in which Humphrey’s staff set out the day’s marching orders, the Minnesota senator crowed, “I know what’s going on. This is the first time we’re fighting a battle.”
The era when Huey Long killed time by reading “potlikker” recipes on the floor had gone down in history. Both sides discussed the merits, albeit in excruciating length. In his opening address on March 10, Russell claimed, perhaps hoping to shock the nation, that the bill would “allow Negroes to join a private club in the nation.” This in turn would lead to a “merging and mixing of races”. Senator Strom Thurmond of South Carolina argued that the 14th amendment, on the language of which the bill depended in part, was illegal because it was approved when the southern states were not re-admitted, and therefore by “Negroes and Skalawags and a few others. “Humphrey avidly parried these attacks, but for once showed the self-control to let others – liberal leaders like New York Republican Jacob Javits and Senators Warren Magnuson and Abraham Ribicoff, Democrats of Washington and Connecticut – conduct most of the talks.
Behind the scenes, LBJ Humphrey pushed to woo Everett Dirksen, the Republican minority leader, who alone could cast the party’s votes for Cloture. In late April, Dirksen began meeting with Humphrey and his lieutenants and officers in the Justice Department and negotiating for the Johnson administration. Humphrey let his optimism overwhelm him. He publicly predicted that in a week he would have the votes for Cloture – a mistake LBJ himself, a teller for almost occult gifts, would never have made. In mid-May he admitted that he was still “far away”. The southerners had switched to a new tactic, tabled hundreds of amendments and forced a vote on each one.
May 1964 became a legislative death march. But excited Humphrey never blew him away. As you read the debates, you cannot miss the wistful notes of affection from his southern rivals. After an endless arcane exchange with the whip, Florida Democrat George Smathers said, “Sometimes he’s so busy doing the many jobs he has to do as a whip that he doesn’t have a chance to speak to me.” Humphreys Kindness made it a little easier for the South to swallow the bitter pill of defeat.
Dirksen came by at the beginning of June and approved a number of largely toothless amendments. On June 9, Humphrey announced to the President that he had posted 66 “soldiers to close down”. But he kept working on the phones; The next morning he was up to 70 years old. Meanwhile, West Virginia Senator Robert Byrd gave the South’s final trumpet, a 14-hour litany of denial that didn’t end until 9 a.m. on the 10th. That evening, the Senate voted 71-29 to end the debate – the first time a civil rights measure has been successfully invoked. Nine days later, almost like a climax, the Senate passed the 1964 Civil Rights Act. The Gettysburg revenge was no more.
Thanks to the filibuster, the Americans had received three months of civil rights training. Lost Cause’s nostalgia was no match for fundamental decency towards victims of slavery. However, the legislation was only passed because Americans were so opposed to Jim Crow that few outside the South would speak out in favor of it. If Richard Russell could only have won five more supporters, the “talking filibuster” would have won another victory.
Today the numbers are a little different, but the logic isn’t. Mitch McConnell only needs to hold on to 41 of the 50 members of his caucus to speak a bill to death. He can use the quorum call to force the Senate to adjourn, just like Russell. (He cannot stop the Senate deal, however, as the Cloture rules now allow a “two-pronged” process in which other deals can be heard.) In short, he can block Biden’s domestic agenda as thoroughly as Richard Russell did with Harry did Truman. And while there is something to be said to compel Republicans to express their views in public debate, four hours of Senator Ron Johnson may not be a compromise not worth winning.
If we need to have a filibuster, let it be a speaking one. But let’s not stop there: we must find new ways to limit the debate, as Humphrey and his colleagues have tried, so that our legislatures serve the cause of justice rather than hinder it.