With the bipartisan deal announced Monday night, it appears the hallowed tradition of the filibuster will not be wiped off the Senate rule books. In fact, the hallowed tradition that most people think of actually has not been used in many years, even though Democrats claim to have filibustered a number of Bush judicial nominees.
The practice actually has become what senators call a “gentleman’s filibuster” — a pale version of the real thing.
The genuine filibuster had a price to pay in time, in energy, in commitment. Now simply threatening to filibuster costs none of those things. You remember the real deal, from the romanticized (and not entirely accurate) portrayal in the 1939 movie “Mr. Smith Goes to Washington” and the stalling of civil rights legislation by Southern Democrats in the 1950s. The filibustering side had to bring cots to the halls of the Senate not only to support the person speaking for hours but to be prepared for a vote to close debate. A filibuster once required personal commitment.
What happened to those days when then-Democratic Sen. Strom Thurmond actually stayed on the Senate floor for 24 hours and 18 minutes to prevent the Civil Rights Act of 1957 from coming to a vote, an effort that ultimately failed? Well, in the 1960s Senate leaders decided such actual filibusters were unseemly and shifted to the “gentleman’s filibuster,” under which the threat of a filibuster was enough to prevent a vote on a particular piece of legislation.
Professor John Eastman of Chapman University’s Law School also explained the significance of what seemed like a minor change when the number of votes required to invoke cloture was changed in 1975. The rule had been that two-thirds of those present could close debate. The post-1975 rule requires 60 percent of the entire body, or 60 votes, to close debate.
“That places the burden on those seeking to end a filibuster,” Eastman said, “because a filibustering senator can suggest the absence of a quorum, which ends a session, at any time. Before, if there were three members on the floor at three in the morning, and two wanted to end debate, they had their two-thirds.”
So the filibuster — having apparently avoided the “nuclear option” — still ain’t what it used to be. If the Democrats want to use it again soon, they should be made to conduct a real filibuster, not the theoretical, filibuster-light version of recent years.