Historical References

Civil Rights and the abuse of Filibusters

Civil Rights Filibuster Ended

June 10, 1964

At 9:51 on the morning of June 10, 1964, Senator Robert C. Byrd completed an address that he had begun fourteen hours and thirteen minutes earlier. The subject was the pending Civil Rights Act of 1964, a measure that occupied the Senate for fifty-seven working days, including six Saturdays. A day earlier, Democratic Whip Hubert Humphrey, the bill's manager, concluded he had the sixty-seven votes required at that time to end the debate.

The Civil Rights Act provided protection of voting rights; banned discrimination in public facilities—including private businesses offering public services—such as lunch counters, hotels, and theaters; and established equal employment opportunity as the law of the land.

As Senator Byrd took his seat, House members, former senators, and others—150 of them—vied for limited standing space at the back of the chamber. With all gallery seats taken, hundreds waited outside in hopelessly extended lines.

Georgia Democrat Richard Russell offered the final arguments in opposition. Minority Leader Everett Dirksen, who had enlisted the Republican votes that made cloture a realistic option, spoke for the proponents with his customary eloquence. Noting that the day marked the one-hundredth anniversary of Abraham Lincoln's nomination to a second term, the Illinois Republican proclaimed, in the words of Victor Hugo, "Stronger than all the armies is an idea whose time has come." He continued, "The time has come for equality of opportunity in sharing in government, in education, and in employment. It will not be stayed or denied. It is here!"

Never in history had the Senate been able to muster enough votes to cut off a filibuster on a civil rights bill. And only once in the thirty-seven years since 1927 had it agreed to cloture for any measure.

The clerk proceeded to call the roll. When he reached "Mr. Engle," there was no response. A brain tumor had robbed California's mortally ill Clair Engle of his ability to speak. Slowly lifting a crippled arm, he pointed to his eye, thereby signaling his affirmative vote. Few of those who witnessed this heroic gesture ever forgot it. When Delaware's John Williams provided the decisive sixty-seventh vote, Majority Leader Mike Mansfield exclaimed, "That's it!"; Richard Russell slumped; and Hubert Humphrey beamed. With six wavering senators providing a four-vote victory margin, the final tally stood at 71 to 29. Nine days later the Senate approved the act itself—producing one of the twentieth century's towering legislative achievements.

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Filibuster and Cloture

Using the filibuster to delay or block legislation has a long history. The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.

In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Kentucky Senator Henry Clay, he threatened to change Senate rules to allow the majority to close debate. Missouri Senator Thomas Hart Benton rebuked Clay for trying to stifle the Senate's right to unlimited debate.

Three quarters of a century later, in 1917, senators adopted a rule (Rule 22), at the urging President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture." The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, until cloture was invoked after a fifty-seven day filibuster against the Civil Right Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or sixty of the current one hundred senators.

Many Americans are familiar with the filibuster conducted by Jimmy Stewart, playing Senator Jefferson Smith in Frank Capra's film Mr. Smith Goes to Washington, but there have been some famous filibusters in the real-life Senate as well. During the 1930s, Senator Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for "pot-likkers." Long once held the Senate floor for fifteen hours. The record for the longest individual speech goes to South Carolina's J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.

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 Thurmond Holds Senate Record for Filibustering

August 28, 1957

WASHINGTON — Fortified with a good rest, a steam bath and a sirloin steak, Sen. Strom Thurmond (search) talked against a 1957 civil rights bill for 24 hours and 18 minutes — longer than anyone has ever talked about anything in Congress.

The South Carolina (search) senator, then a Democrat, opened his one-man filibuster on Aug. 28, 1957, at 8:54 p.m. against the bill, which he said was unconstitutional and "cruel and unusual punishment."

Republican leader Sen. William Knowland (search) of California retorted that Thurmond's endless speech was cruel and unusual punishment to his colleagues. But Thurmond kept on.

Other Southern Democrats detested the bill but held their tongues, clearly outnumbered. Some grumbled that he was grandstanding for folks back home and broke an agreement not to filibuster.

That didn't deter Thurmond, who by then had a reputation for going his own way. "It never has been a sure thing that Strom Thurmond would go along with any group unless it went his way," The Associated Press reported in coverage of the filibuster.

The senator had not consulted anyone on his staff about his plans, though Nadine Cohodas wrote in her biography of Thurmond that aide Harry Dent "knew something was up when his boss began collecting reading material to take to the floor."

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Changed to three-fifths of the total membership of the Senate.

 March 7, 1975

From Filibuster to Cloture. The filibuster forces knew that they faced a long and tiring battle. Their opponents had anticipated and planned for the filibuster. In fact, Humphrey personally opened full-fledged debate on the civil rights bill on March 30 with a three hour, eleven-minute speech from a 68 page speech of his own in defense of H. R. 7152. Both Humphrey and Thomas Kuchel (R-CA), Senate Minority Whip gathered enough senators together so that at any time a quorum call came up, the pro-civil rights forces could answer it. Northerners also combated the "southern bloc" by answering southerners' criticisms of the bill on the floor rather than simply letting the filibusterers speak indefinitely without response. To respond to the organized opposition, southerners formed a platoon system composed of three six- member filibuster teams. When one team had the floor for the filibuster, the other two would rest and then prepare to take turns speaking on the floor.

The Republican Party was not so badly split as the Democrats by the civil rights issue. Only one Republican senator participated in the filibuster against the bill. In fact, since 1933, Republicans had a more positive record on civil rights than the Democrats. In the twenty-six major civil rights votes since 1933, a majority of Democrats opposed civil rights legislation in over 80 % of the votes. By contrast, the Republican majority favored civil rights in over 96 % of the votes.

Cloture helped prevent some filibusters, but not all of them. As Robert Caro explains in Master of the Senate, there was a loophole in Rule XXII, which allowed cloture to be invoked only on bills on the floor but not on a motion to bring a bill to the floor. This loophole played an important role during the debate over civil rights legislation in 1949 when Senators from the South, led by Senator Richard Brevard Russell Jr. (D-GA), used the loophole to filibuster against the bill. They were able to do this because of the timeliness of legislation such as rent control, where the governing law was about to expire. Rent control seriously affected a large percentage of Northern voters and forced the hand of some Northern Senators to vote with the South. After defeating the Civil Rights bill Russell proposed a compromise that allowed for cloture on motions to bring a bill to the floor, but two-thirds of all Senators, not just those present, had to vote (this was changed to three fifths in the 70s).

This did not stop Senators from the South from filibustering civil rights bills, which resulted in legislative bottlenecks. Once South Carolina's Strom Thurmond filibustered for twenty-four hours and eighteen minutes against the Civil Rights Act of 1957. Majority Leader Senator Mike Mansfield (D-Montana), spearheaded the adoption of a new Senatorial procedure. Mansfield created a system that would technically maintain the Senate's tradition of unlimited debate but would prevent a legislative logjam. This system is known as the "two-track" system. In this system, if one issue or "track" is being filibustered, the Senate can switch to another track in order to deal with other pending business.

Even this did not stop Southern Senators from filibustering the civil rights legislation in 1964. However, the majority realized they had a super-majority to invoke cloture and were determined to pass the legislation. These Senators, therefore, did not use the "two-track" system. The Southern Senators held out for fifty-seven working days, including six Saturdays, before cloture was invoked and the bill was passed nine days later

For nearly 200 years, the filibuster has made the minority party a force to be reckoned with in Congress. It inspired the 1939 film classic Mr. Smith Goes To Washington (in which Jimmy Stewart played a naive senator who led a filibuster to thwart efforts to smear him). The filibuster also has led to some of the darker moments in the Senate's history: From the mid-19th century through the 1960s, the filibuster was Southerners' tool of choice for blocking civil rights legislation.

Today, the prospect of Democratic filibusters to prevent the Republican-controlled Senate from confirming some of Bush's most conservative judicial nominees has infuriated Republicans, whose 55-vote Senate majority is five short of the number they need to end a filibuster. Senate Majority Leader Bill Frist of Tennessee is mulling a rules change that would ban its use against presidential nominees. In the tradition-bound Senate, this is considered such a radical proposal that it has been referred to as "the nuclear option" by Senate Democratic leader Harry Reid and others.

The fight looms as one of the most momentous showdowns of the congressional session. It could set the stage for the confirmation of the next Supreme Court justice, making it easier for the president to appoint a hard-line conservative. Or it could tear the Senate apart and send its legislative agenda the way of the National Hockey League's canceled season. That could end the president's hopes of making a restructured Social Security system part of his legacy.   'Tyranny by the minority'

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Why Getting Rid of the Filibuster Is Still a Good Idea
By Julian E. Zelizer

Democrats are making a major mistake by opposing filibuster reform.
 
By opposing the proposal of Sen. Bill Frist, the Republican Senate majority leader, to prohibit filibusters against judicial nominees, Democrats will miss a massive opportunity to reform one of the most outdated and anti-majoritarian practices in American politics. And, as liberal Democrats who attacked the Electoral College after the 2000 election reminded us, majoritarian democracy can be a good thing.
 
If Democrats are searching for a reason to support filibuster reform, they can look at their own history. In the 1960s and early-1970s, liberal Democrats and Republicans attacked the filibuster as anti-democratic, inefficient, and a symbol of legislative incompetence. Liberals in the earlier post-World War II period were even bolder in their aspiration. Their goal was to transform the Senate into a strictly majoritarian institution where a simple majority of senators could end a filibuster and pass a piece of legislation.
 
Late in the 1950s, liberal giants in both parties, such as Hubert H. Humphrey, Jacob K. Javits, Paul H. Douglas, Joseph S. Clark and Walter F. Mondale made filibuster reform a top priority. It became so important that civil rights organizations in the 1950s placed committee and filibuster reform at the top of their political agenda. The NAACP listed filibuster reform as important as ending lynching.
 
This struggle culminated in 1975 when Republican Vice President Nelson Rockefeller intervened in Senate deliberations and allowed the reform to pass. Although reformers did not obtain a strictly majoritarian system, senators made it easier to end a filibuster by requiring that three-fifths, rather than two-thirds, of the Senate was needed to obtain cloture (the process by which a filibuster is ended).
 
Opponents, such as the conservative southerner James Allen, warned that the change would bring havoc to the institution. Reformers praised the change. A few liberal voices were disappointed that the filibuster survived at all.
 
Today's Democrats can learn from this older generation of liberals in the 1950s and 1960s who argued that the filibuster was fundamentally anti-democratic, especially since the Constitution, undemocratically, already granted small and large states equal representation in the Senate.
 
In his first year as a senator, Humphrey enraged southern conservatives by championing civil rights and legislative reform. He went so far as to call the "undemocratic" filibuster "evil." In the 1950s, the filibuster was the ultimate symbol of how procedure blocked action on civil rights. Writing for the New Republic, Sen. Douglas explained that filibuster reform may seem to be "a barren and arid matter of parliamentary procedure. It involves, however, the whole question as to whether Congress will ever be able to pass civil-rights legislation."
 
The filibuster, according to its critics in the 1950s and 1960s, was a major reason that the executive branch gained power over the legislative branch. They argued that the inefficiency of the filibuster facilitated the "imperial"  power of the presidency. Given that a supermajority -- that is, 60 votes -- is needed to pass legislation, Senate deliberations are an agonizing process. Minnesota's Walter Mondale lamented to colleagues that filibusters "impaired" the ability of the institution to function.
 
Liberals of the postwar period also liked to remind colleagues that the filibuster symbolized what many Americans disliked about their legislative branch. A moderate Republican, Robert Packwood of Oregon, pointed out that the filibuster was the favorite media example of how Congress did not work. He was right. In 1964, CBS correspondent Roger Mudd reported outside the Senate every night with a clock superimposed next to his face to symbolize how long it was taking the Senate to reach a decision.
 
Filibuster reform has a rich liberal tradition. Although liberal Democrats might lose some key judicial battles as a result of filibuster reform, the change proposed by Republicans would  make the Senate more responsible to the majority of Americans. In the long run, it would bring the Senate more in line with 21st-century understandings of democracy.

 Mr. Zelizer is a professor of history at Boston University and the author of On Capitol Hill: The Struggle to Reform Congress and its Consequences, 1945-2000 (2004). He is a writer for the History News Service.

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