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Sunday, June 12, 2005

The Last Time They Changed the Filibuster Rule

My recent post on the filibuster controversy--which has meanwhile been, in effect, postponed as a result of a compromise between moderate Republicans and Democrats--drew an anonymous comment arguing that the Democrats (and specifically Robert Byrd) had pulled the same trick the Republicans were trying to pull back in 1975, when the rule was last changed. Through the magic of Proquest, I managed to uncover the story--which I did not remember at all--within about an hour. It is roughly the opposite of what the comment asserted, and it yields interesting lessons about our current situation and, once again, how American politics have changed.

The 1974 Congressional elections were a political and generational shock wave. In the wake of Nixon's resignation and Ford's pardon, Democrats won over 40 new House seats, leaving them with 291, to just 144 for the Republicans. In the Senate they also gained, eventually (after a long recount in New Hampshire in which the Democrats overturned an initial Republican victory of less than 100 votes) reaching 62 Senators, as against 38 Republicans. The new men arrived in Washington determined to reform the old Congressional rules, including the filibuster rule, which since 1959 had required a 2/3 vote of all those present and voting to cut off debate on any measure.

To my surprise, it turned out that Democrats, led by Walter Mondale, had tried to do what today's Republicans have threatened, with the help of liberal Republican Vice President Nelson Rockefeller. Then as now, they faced the task of trying to change the rule by a majority vote, which could only be done by avoiding a debate and filibuster under the normal rules. Their main antagonist, now forgotten, was Democratic Senator James Allen of Alabama, an extreme conservative and master of parliamentary tactics who had blocked several liberal pieces of legislation with filibusters during the last session. Allen's reputation as a parliamentarian was similar to Robert Byrd's today, but it is clear that Byrd is now too old, alas, to put his legendary knowledge to use--and it is shocking that the Democrats have not been able to produce a single new Senator willing and able to play this role.

Rockefeller, in fact, agreed to rule that the Senate rules could be changed by a simple majority vote (something which was not explicitly contrary to the rules themselves then, as it is now), because the debate was taking place at the beginning of the session. In addition, in a key, early session, he moved things along by simply refusing to recognize Allen, who, he knew, wanted to make some kind of motion that would be subject to debate, and then to begin one of his famous filibusters to delay the whole process. On February 20th, reformers (who included some Republicans) introduced a two-part motion, stating, first, that a majority vote would be sufficient to alter the Senate rules, and second, to consider altering the filibuster rule to allow a debate cut-off with a 3/5 majority. Rockefeller ruled in their favor on the first part of the motion, but Allen immediately asked if the two parts were "divisible". Rockefeller, apparently, had too much integrity to argue that they were not. Allen then began debating--that is, filibustering--the second part of the motion, and the effort to change the rule, for the moment, died. Two days later, Allen took the floor during a debate on an important railroad bill and refused to allow a vote until the reformers had given up their proposal altogether. Allen, in short--ONE Senator, whose views on issues were far more outdated then than Teddy Kennedy's are today--was "shutting down the Senate" to get his way--the tactic the Democrats had threatened to use, but have for the time being backed away from, during the current controversy. Allen used up most of one whole day by exercising his prerogative to have the clerk read the text of an entire bill. And no one, as everyone recognized, could stop him.

Some of the contemporary commentary makes interesting reading today. William Safire wrote that the change to a 3/5 vote would be a terrible blow to the Constitutional role of the Senate, and warned the Democratic majority that one day, a conservative majority might want to eliminate filibusters altogether. (Safire retired as a columnist last year without, as far as I can find, expressing an opinion on the current debate.) Roland Evans and Robert Novak bitterly attacked Rockefeller for cooperating with the reformers. In a May 30 column, Novak suggested (with apparent approval) that Bill Frist might soon revive the "nuclear option"--essentially, exactly what Rockefeller had tried, and failed, to do.

1975 was not 2005. Not just a dozen members, but the leadership of both parties recognized a need for civility and compromise. And thus, over several weeks, the leadership of the two parties worked out a solution. The vote required to cut off a filibuster would be reduced from 2/3 of those present to 60 votes--more, in effect, than the 3/5 majority of those present initially demanded by the reformers. But the sentence I have quoted in an earlier blog was added to the Senate rules, requiring a 2/3 vote to amend those rules in the future. And after that compromise was introduced and Allen began to filibuster against it, the Senate on March 5 voted 73 to 21 to end his filibuster--that is, by far more than the current rules required to cut off debate. The new rule was then adopted. It was adopted within the framework of the then-existing rules of the Senate, and it was adopted along with a proviso that would make it impossible to change the rule again without a 2/3 vote. That is the rule which, as I pointed out more than a month ago, the Republicans are still threatening to disregard at their pleasure in an act of usurpation for which there is no parallel in the 34 years of Democratic control of the Senate from 1954 to 1980 and again from 1986 to 1994.

Three points of interest, it seems to me, emerge from this story. The first is the one I have been making here repeatedly--that the current Republican leadership, Baby Boomers all, are willing to disregard rules and precedents to get their way to an extent to which previous generations simply would not go. They are no more bound by law, custom, or precedent that their SDS contemporaries were in 1969-70. The second is the failure of any commentators on this controversy to do what I just did, and research the most recent precedent, to provide some perspective on what is going on--if I can do it in an hour of spare time, why can't the Washington Post or New York Times do the same thing and print it? But more interesting, and equally depressing, is the failure of the Democrats simply to do what would be necessary to force the Republicans to obey the rules, as one antideluvian Republican, Allen, did thirty years ago. The option of shutting down the Senate, clearly, should have been used pre-emptively, not threatened as retaliation, and there is no reason to suppose that it might not have worked. The issue is almost sure to arise again, and when it does, I hope that some Democrats will have familiarized themselves with this story and found the courage to do what has to be done to preserve some respect for laws, rights and privileges within the Senate of the United States.

Postscript: The revelation that Mark Felt was Deep Throat has touched off a flurry of controversy and a great deal of misniformation about his role. Story after story implies that there would have been no Watergate scandal without him. This, I think, is a very questionable assertion indeed; but exploring that point must await some further re-reading of All the President's Men, and the subject will be taken up at another time.

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