Senate Locked Over Filibuster Debate

GWEN IFILL:

As the Senate braces for a showdown this week over the president's judicial nominees, all eyes are on the filibuster — that time-honored technique of essentially talking an issue to death. Advise and consent, delay and debate, all of these concepts are on the table. But what is the filibuster supposed to do?

For that, we turn to two political scientists. Sarah Binder, an associate professor at George Washington University and a senior fellow at the Brookings Institution; and Jeremy Mayer, an assistant professor in the school of public policy at George Mason University. Sarah Binder, we think we know what a filibuster is whether we're thinking of Jimmy Stewart or Huey Long, or Strom Thurmond. Tell us, what is it really supposed to be?

SARAH BINDER:

Well, the way the Senate has developed today a filibuster is simply extended debate. And the Senate doesn't have a rule that allows the majority to cut off debate. So under today's rules, unless you have a supermajority of 60 votes, that extended debate keeps going.

GWEN IFILL:

But why is it that it's now a big deal? Hasn't this always been the way it's supposed to be?

SARAH BINDER:

Well, some people believe that the filibuster was a part of the framers' design for the Senate. In fact, there's very little evidence that the framers anticipated filibusters, but it came out an accidental change in the rules in the early 1800's. Since then, when senators realized they had could have extended debates, gradually they began to exploit the rules to serve their own personal purposes.

GWEN IFILL:

Jeremy Mayer, expand on that. This began not because the framers decided this was something which should be protected or enshrined in the Constitution necessarily —

JEREMY MAYER:

Absolutely.

GWEN IFILL:

— but it was something that became a grand tradition.

JEREMY MAYER:

And it emerged very slowly and began to be used most particularly with civil rights. The grandest clashes in the history of the filibuster deal with the issue of civil rights where we had a strong regional opposition to a majority desire to stop things like lynching in the South.

GWEN IFILL:

So it was about minority rights?

JEREMY MAYER:

Absolutely. And it gives the minorities that impassioned chance to say no. Nothing else happens until someone compromises with us.

GWEN IFILL:

We should say when we talk about minority rights, we're talking about literally — not just some civil rights language but also the people who have the fewest votes?

JEREMY MAYER:

Yes. In the history of the filibuster, usually racial minorities are not the winners; the one great exception was sort of a filibuster threat by Carol Moseley-Braun in 1993 when they were about to grant recognition to the Daughters of the Confederacy again, and she threatened to filibuster and won.

GWEN IFILL:

How have they been used in the past? What are the most famous? I mentioned Strom Thurmond; I mentioned Huey Long, who apparently opined about pot liquor on the floor of the Senate as a way to take time. How have they been used?

SARAH BINDER:

Well, there have been two categories roughly: One, the serious, serious filibusters as Jeremy has referenced to, the ones over civil rights, also the ones over slavery in the 19th Century. But there's also been a cost of what we might call trivial filibusters, like the two Nebraska senators in the 1980's were filibustering a bill that would have created a radio station to broadcast into Cuba. Why were they opposed? Well, they were afraid that Cuba would jam the new station and would interfere with the Des Moines radio station, right? Well, that meets my definition of probably a trivial, trivial filibuster.

JEREMY MAYER:

My favorite is Al D'Amato filibustering over 750 jobs in Upstate New York with a typewriter factor; he went on for 15 hours and ended up singing songs about Mexico.

GWEN IFILL:

I remember that was really not musical. But let's think back for a moment about the way that these are intended to be used. You say they're supposed to represent minority rights. But we see today a big fight about changing the rules. Have the rules ever been changed before?

JEREMY MAYER:

Many times.

GWEN IFILL:

Go ahead.

JEREMY MAYER:

They go back to the – there used to be no cloture vote at all.

GWEN IFILL:

Explain what cloture is.

JEREMY MAYER:

Cloture is when a supermajority can step in and say, stop this debate. It used to be there was no a way to stop a single senator, there was just the respect that that senator might have for the institution. But in 1917, Wilson pressed to have this limited and you have — he anticipated perhaps the Treaty of Versailles going through the Senate. And since then we've changed it now to 60 votes, as Sarah said.

GWEN IFILL:

So, Professor Binder, let's talk about that. If they're talking about making this change, this rule change, how significant is that, if we know that there was already a rule change which allowed debate to be cut off, how significant is this rule change as we see it?

SARAH BINDER:

Well, the thing to keep in mind here is that technically this nuclear option —

GWEN IFILL:

Which we should explain what that is – that's just reducing the number of votes it would take to cut off filibuster.

SARAH BINDER:

Filibuster, but only for a certain type of judicial nomination. What's important, though, is that this would not technically be a change in the formal rules in the Senate, which the other types of changes that Jeremy has referred to; this would be a change in precedent, which are interpretations of the rules. How do rules apply in different circumstances – and that's a lot more controversial for the Senate, even for a chamber that rarely changes its rules.

GWEN IFILL:

Is there any way — are there other ways which have been used to derail judicial nominees?

SARAH BINDER:

Well, judicial nominations have been controversial at least for the past 25 years as well as historically we've seen debates over them. When the Clinton administration sent up judicial nominations to the Senate, Republicans were in control for six of the eight years. Well, they didn't need to filibuster, because they controlled access to the floor, so senators used holds, anonymous holds on nominations to prevent them from coming to the floor; they used blue slips, a committee process which allowed the home state senator essentially to derail a nominee. And sometimes they simply didn't hold a hearing, again, always pretty invisible ways but, nonetheless, ways of stopping judicial nominations.

GWEN IFILL:

Jeremy Mayer, in this debate that's going on right now, one of the things that the folks who are in favor of the presidential judicial nominees have said consistently, in fact, on this program many times, have said this has never been used this way before; that the filibuster has never been used and shouldn't be used to derail a presidential judicial nominee. Is that true?

JEREMY MAYER:

That is flat out not true. There was the Fortis nomination, but moreover, some of the Republicans who have been saying that actually voted for unsuccessful filibuster attempts against Clinton's nominees.

GWEN IFILL:

Explain the Abe Fortis nomination; this was a Johnson nomination to be chief justice.

JEREMY MAYER:

Johnson was leaving office and Fortis was being promoted to chief justice. Now, a lot of ethical complaints emerged about Fortis, who was also quite liberal and controversial.

GWEN IFILL:

He was already on the court.

JEREMY MAYER:

He was already on the court. And there was a filibuster attempt made and it was clear that they didn't have the votes probably even to get a majority for Fortis, so they allowed the nomination to die; they withdrew it. But there have been more recent filibuster by Republicans to stop judicial nominations but just weren't successful. So I think it's — we shouldn't give them credit for voting and not succeeding.

GWEN IFILL:

But there is a very narrow way of defining what this is and what those were, which makes it a little bit more complicated, makes it possible for them to make these claims.

SARAH BINDER:

Absolutely. I mean, part of the problem is this – we say we know pornography when we see it but we don't really know filibusters when we see them. Sometimes it's in the eye of the holder and there are political reasons to say we are filibustering or we're not filibuster; and it makes it very hard to compare episodes over time.

GWEN IFILL:

Now this term "nuclear option" was actually coined by Sen. Trent Lott, a Republican, but — and there is debate over whether that's the right term or not. But in the end the reason why it was used is because it signals some sort of monumental change in the rules. Would this be a monumental change in the rules?

SARAH BINDER:

It would be.

GWEN IFILL:

Destructive.

SARAH BINDER:

It's nuclear two ways: First of all the process by which they are trying to ban filibusters, the process is nuclear, the series of procedural events that they anticipate occurring; it has to break with the way the Senate traditionally deals with points of orders. But second, it's nuclear in the sense of how we expect Democrats to react, which is as they said, we will probably blow the place up, which is to say just because you ban filibusters of judicial nominations, that leaves wide open a whole range of procedural tactics for individuals and for the minority party in the Senate to exploit. And that could be very detrimental to the majorities and their ability to pursue its agenda.

GWEN IFILL:

Another question. The other terminology which has been used in this debate is, the Republicans mostly have called this the constitutional option, saying there is constitutional protection for the Senate to be able to change its own rules to do its business. Is there a constitutional basis for that?

JEREMY MAYER:

Both sides are clinging to the Constitution in this debate. A lot of Democratic-related groups are saying, you know, in the ads on the air around the country that the Constitution is involved. The Constitution is silent about the filibuster. This does not involve the Constitution. The Senate is given the power under the Constitution to set up its own rules. So both sides in the debate are wrong when they try to wrap themselves in the Constitution.

GWEN IFILL:

So what has to happen now? You are saying you both agree in that case that both of these cases, that the Senate has the right to do what it wants to do with its own rules, but what are the long-term implications that you can see?

SARAH BINDER:

Well, the Senate has to figure out how it is going to deal with having supermajority rules that block majorities in an era of intense polarization of the party. And if they're going to do away with filibusters on judicial nominations, they have to prepared to have it taken away on all other nominations and all other legislative measures.

GWEN IFILL:

For instance, what do you mean?

SARAH BINDER:

Well, first, we could easily see if they succeed in banning filibusters of judicial nominations, it could be extended to ban filibusters of Executive Branch nominations under the reasoning that this is advice and consent. But it could also then be extended – and I would be surprised to see it extended to different policy areas, as they've done with budget or trade in the pas, or to see it extended broadly to ban the filibuster altogether. The senators have to decide is that the institution they want for the future?

GWEN IFILL:

Do you see it having that broader effect potentially?

JEREMY MAYER:

I think it could. And I think a lot of people need to realize the filibuster is the most undemocratic element in American politics except for the Supreme Court itself.

GWEN IFILL:

What do you mean?

JEREMY MAYER:

The Senate is already undemocratic; we don't do it by population. Small states get equal representation with California.

GWEN IFILL:

And that the Founding Fathers did –

JEREMY MAYER:

Clearly intended. But now with the filibuster, 40 senators representing as small as 16 percent of the U.S. population can stop everything. That's one reason we have the agricultural policies we do because, which gives such huge subsidies to such a small percentage of Americans, it's because the agricultural states which are largely empty have a strong voice in the Senate.

GWEN IFILL:

Okay. Well, Jeremy Mayer and Sarah Binder, thank you both very much for helping us out.

JEREMY MAYER:

Thank you.

SARAH BINDER:

Thank you.