FDR and Barack Obama and the Filibuster Proof Congress;
Why Often Nothing Gets Done!
June 19, 2009
Richard J. Garfunkel
It is interesting that the media seems to rarely do its home work. With regards to the comparison of Barack Obama and the late Franklin Delano Roosevelt there is quite a difference how the Congress operated then and now. As to “cloture,” which existed in FDR’s time, as it does today, the majority then needed 66% of the then 96 Senators or 64 votes to bring a vote to the floor or stop a filibuster. The term was derived from the Spanish filibustero meaning 'pirate' or 'freebooter'. This term had in turn evolved from the French word flibustier, which itself evolved from the Dutch vrijbuiter (freebooter). This term was applied at the time to American adventurers, mostly from Southern states, who sought to overthrow the governments of Central American states, and was transferred to the users of the filibuster, seen as a tactic for pirating or hijacking debate.
In those days it was rarely used. In the whole 19th Century there were, it is estimated about twenty-three “cloture” votes. In fact, the filibuster, which is a tactic most commonly known from the 1939 film, Mr. Smith Goes to Washington, is a methodology used to prevent action on the floor of the Senate. Therefore “cloture” is the calling of a vote, and in FDR’s day, 64 votes were needed, to shut off debate, and allow a floor vote where today 51 votes are needed for passage. In the post war years, the filibuster was more common regarding Civil Rights legislation, which was often bottled up by Dixiecrats from the South. Southern committee chairmen, in quite often life-time jobs, representing one-party “rotten boroughs,” took advantage of the seniority system and could thwart needed legislation in their committee caucuses or eventually on the floor of the Senate.
The idea of unlimited debate emerged in1806, as the Senate agreed to change its rules, which had been existence since 1787.This allowed the potentiality of a group of Senators to talk an issue to death. Because the Senate created no alternative mechanism for terminating debate, the filibuster became an option for delay and blocking of floor votes. In 1917 a rule allowing for the cloture of debate (ending a filibuster) was adopted by the Democratic Senate at the urging of President Woodrow Wilson. From 1917 to 1949, the requirement for cloture was two-thirds of those voting. In 1946, Southern Senators blocked a vote on a bill proposed by Democrat Dennis Chavez of New Mexico (S. 101) that would have created a permanent Fair Employment Practices Committee (FEPC) to prevent discrimination in the work place. The filibuster dragged on for weeks and weeks, and Senator Chavez was forced to remove the bill from consideration after a failed cloture vote even though he had enough votes to pass the bill.
In 1953, US Senator Wayne Morse, (I.-OR)., conducted a filibuster for 22 hours and 26 minutes protesting the Tidelands Oil legislation, which at the time was the longest one-person filibuster in U.S. Senate history.
After a term as an independent, Lyndon Johnson (D-TX), the Democratic Majority Leader, convinced Morse to switch to the Democratic Party in 1955. Despite his change in party affiliation, and accusations of being a “loose-cannon,” Morse won re-election to the United States Senate in 1956.
He defeated U.S. Secretary of the Interior and former four-term governor Douglas McKay in a hotly-contested race, record-spending race for Oregon. He later filibustered against President Eisenhower’s appointment of Clare Boothe Luce as ambassador to Brazil. Morse chastised Ms. Luce for her criticism of Franklin D. Roosevelt. Although the Senate confirmed Luce's appointment in a 79–11 vote, Luce retaliated against him. In her acceptance speech to the Senate, Luce commented that her troubles with Senator Morse were attributable to the injuries he sustained from being kicked by a horse in 1951. She also remarked that riots in Bolivia might be dealt with by dividing the country up among its neighbors. Ironically, an immediate firestorm erupted against these remarks from Morse and other Senators, and Luce's refusal to retract the remark about the horse, led to her resignation just three days after her appointment.
At one time the procedure for preparing to filibuster was called “taking to the diaper,” which referred to the actions undertaken by a prudent senator before an extended filibuster. As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting. After a series of filibusters led by Southern Democrats in the 1960s over civil rights legislation, the Democratic-controlled Senate in 1975 revised its cloture rule so that three-fifths of the Senators sworn (usually 60 senators) could limit debate. Changes to Senate rules still require two-thirds of Senators voting. Senator Strom Thurmond (D/R-SC) set a record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes, although the bill ultimately passed. Thurmond broke the previous record of 22 hours and 26 minutes which Wayne Morse (I-OR) had established in 1953 protesting the Tidelands Oil legislation. Strom Thurmond visited a steam room before his filibusters in order to dehydrate himself so he could drink without urinating. An aide stood by in the cloakroom with a pail in case of emergency.
The filibuster has tremendously increased in frequency of use since the 1960s. In the 1960s, no Senate term had more than seven filibusters. One of the most notable filibusters of the 1960s was when southern Democratic Senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours. In the first decade of the 21st century, no Senate term had fewer than 49 filibusters. The 1999-2002 Senate terms both had 58 filibusters. The 110th Congress broke the record for filibuster cloture votes reaching 112 at the end of 2008.
During the two years of the 110th Congress (2007-2009), Senate Republicans filed an unprecedented, legislative-delaying 142 cloture motions. How come we hear little or nothing about this activity? The GOP has been using delaying tactics for years and great credit must go to Bill Clinton for getting anything done.
In the 73rd Congress, which was elected with President Roosevelt in 1932, the Democrats held 60 seats to 36 for the GOP. There were very few, if any, “cloture motions” in that session, despite all the complaints from some Senators that they did not have a chance to even read the bills being offered. If FDR had to worry or plan how to get 64 Senators to support each and every piece of legislation, rather than the 49 required in those days maybe nothing would have been accomplished. Those 15 extra votes would have been very difficult to satisfy!
Of course the House has different rules then the Senate, and in those days most districts were not “rotten boroughs” that were carved out of the State legislatures to make secure seats. Because of the tenure of the time, and the fact that the House stood for re-election every two years, popular sentiment could make for great changes in the make up of that body. In March of 1933, when FDR was inaugurated, the Democrats held a 311-117-5 advantage and could afford to lose 90 or so seats and still hold a majority. Just four years earlier, Herbert Hoover came in the White House with a House majority of 267-163-14 and Warren Harding enjoyed a 303-131-1 majority when he arrived in 1920. (By the way the 3rd number indicates members of other parties.)
Today the Democrats hold a 256-178 majority and though that is substantial, the idea that even a very successful Obama first two years could eliminate some of those remaining GOP seats is speculative. If a Michelle Bachman, R-MN, can hold her seat almost any GOP troglodyte is safe.
As to reform legislation regarding healthcare, market place regulation, the deficit and the tax code, Obama will need a strong Democratic commitment. Other issues regarding, energy policy “cap and trade,” education, “gay rights” and entitlements maybe compromised to death.