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Montana Viewpoint: Rule 22 meets Catch 22

by JIM ELLIOTT
| March 24, 2021 12:00 AM

Recently, U.S. Senator Ron Johnson, Republican of Wisconsin, used his power to forego the traditional abbreviated process of introducing a bill in the Senate and substitute the long version; in this case to introduce President Biden’s COVID relief bill.

Johnson’s motion required the Senate Clerks to read the 628-page bill aloud to the Senators, who rapidly vacated the premises for the next 10 hours while the bill was being read.

By having the text of the bill read aloud Johnson took up hours of presumably valuable Senate time to forestall the inevitable by visiting a misery on the Clerks who, unlike the Senators, couldn’t duck out for the duration.

This was what might be called a filibuster by proxy.

In the Senate a bill is not brought to a vote until the end of debate when everyone has had their say on it. A filibuster, Senate rule 22, is a way of forestalling or preventing a bill from coming to a vote by forcing the debate to go on forever, or at least until 60 senators get tired of listening to other senators and vote to support a motion called cloture which, as the word implies, closes the debate on the issue and forces a vote on the bill.

It used to be that in order to successfully filibuster a bill someone had to be constantly talking about the bill on the floor of the Senate. They could take turns, or they could go it alone, but they had to be standing up and talking the entire time, with no breaks.

The world record for that is held by former Senator Strom Thurmond, Democrat of South Carolina who held forth against a civil rights bill for 24 hours and 18 minutes, which says a lot more about his physical ability than it does about his mental ability.

Today, it is sufficient for one side to merely threaten a filibuster to convince the other side that it would be fruitless to go forward with the legislation, thus, stalemate.

While the filibuster is often touted as a way to bring senators to compromise it is more commonly used as a way to stop things from happening. This was particularly true in the Civil Rights legislation of the 1950s and 1960s when Southern Democrats used the process to hamstring legislation that would have stopped lynchings, require integration of schools, and implement full voting rights for all Americans.

The Senators who opposed the legislation were white, the citizens who would have benefitted from it were Black. In eventually passing the Civil Rights Act of 1964 Senator Everett Dirksen, Republican of Illinois, and Democratic Senator Hubert Humphrey of Minnesota worked together to bring the debate to cloture by forming a coalition of 27 Republicans and 44 Democrats to bring the bill to a vote.

The filibuster had lasted 60 days.

When Democrats control the Senate, the filibuster works to the advantage of the Republicans, and vice versa, so there is a justifiable amount of fear involved in eliminating the filibuster because while it may be your enemy today it may be your friend tomorrow.

Requiring 60 votes for cloture is a rule, and it can and has been changed. When then Majority Leader Harry Reid, D-Nevada, was having a hard time getting Obama’s nominations to the lower federal courts confirmed because the Republicans were filibustering each one, Reid had the rules changed to eliminate the use of the filibuster in the vote on lower court nominations and on cabinet nominees.

More recently former Majority Leader Mitch McConnell removed the supermajority vote requirement on Supreme Court nominees.

But the main issue is this: the filibuster is almost exclusively the tool of the minority and also almost exclusively used to stop legislation that the minority does not have the votes to otherwise defeat.

It serves only the supposed purpose of “protecting” the minority from the “tyranny” of the majority. But the majority is there because the American voters have put them there, not because the Senators who make up the majority have staged a coup and taken over the reins of government illegally.

Getting rid of the rule will get things moving, no matter who controls the Senate, and they can, as my old friend Jess Nelson used to say, “do something even if it’s wrong.”

Jim Elliott served 16 years in the Montana Legislature as a state representative and state senator. He lives on his ranch in Trout Creek.