TCS Daily


On Bluffs and Nuclear Options

By Lee Harris - May 11, 2005 12:00 AM

A Two Hundred Year Old Tradition?

Democrats tells us that the filibuster tradition is two hundred years old, making it almost as old as the United States itself. Just Google the phrase "the filibuster tradition" and up will pop a number of sites in which it is confidently stated that the filibuster tradition goes back to the earliest days of the Senate.

This appeal to the venerability of the filibuster tradition has been used by the Democrats in order to attack those Republicans who are currently threatening to abolish this tradition. How, it is asked, can men who claim to be conservative dare to lay hands upon one of our oldest traditions of legislative self-governance? Aren't conservatives supposed to have respect for hoary ancestral traditions?

In response, Republicans intent on ending the filibuster tradition point out how often it was used to defend such profoundly illiberal causes as that of segregation in the American South. Some Republicans even argue that the filibuster tradition is downright anti-democratic, precisely because it is a deliberate effort to compel the majority to accept the will of the minority. Furthermore, the Republicans argue that they are not attacking the filibuster tradition itself, but only the Democrats' unprecedented use of the filibuster to thwart the process of nominating judges to federal courts -- a use of the filibuster which, in the eyes of the Republic, is actually an abuse of the filibuster tradition.

In short, in the current fight over the nuclear option, normally traditionalist Republicans are accused of betraying tradition, while liberal Democrats are accused of betraying democracy -- a situation which allows each party to feel that the other party is behaving opportunistically, and without giving any thought to the consistent application of their own most cherished political ideals.

But if the filibuster tradition is really a tradition, who started it?

Who Invented the Filibuster?

To discover the answer to this question, I turned off my computer, got out my battered edition of The Encyclopedia Britannica, and shortly discovered that the filibuster tradition does not have quite the pedigree that current Democrat polemists have assigned to it. "From 1789 to 1828 the presiding officer of the senate...had, in practice, the unappealable power to stop superfluous motions and tedious speeches, and evidence seems to indicate that this power was used by vice-presidents John Adams, Thomas Jefferson and Aaron Burr."

Note that during this period there was no need for a supermajority of the senate to terminate debate on a question. You did not need two thirds of the Senators to cut off debate, or even 60% of them -- all you needed was to have the presiding officer of the senate declare that enough was enough, and that ended it.

Yet precisely because this discretionary power to cut off debate was in the hands of a single person, normally the Vice President of the United States, it was a power that could be abused, and abused in two distinct ways.

First, the Vice President -- who was not himself a member of the Senate -- could arbitrarily use his power to cut off debate simply because he didn't like what was being said, thereby suppressing the free and open discussion of questions that is the lifeblood of any genuinely free legislative body. Yet, despite the fact that such an abuse was theoretically possible, there seems to be no case in which a Vice President used this power of cutting off debate in a manner that was so overtly capricious and tyrannical. Indeed, the problem of abuse of power, when it finally arose, came about not because a Vice President arbitrarily chose to stifle debate, but rather because one particular Vice President refused to stop the speeches of one particular Senator.

The year was 1825, and the Vice President was John C. Calhoun, the brilliant South Carolinian who became the father of the doctrine of nullification. The Senator was John Randolph, more famous for his career in the House of Representative, and one of the most bizarre and arresting characters in American history.

Randolph had a high piercing voice -- so shrill that there were rumors that Randolph was a eunuch. Yet it was a voice that was the instrument of a stupendous intellect, and his speeches often drew enormous crowds to the galleries who came as much for entertainment as for the politics.

The President at the time was John Quincy Adams, and John Randolph hated no man more than he did John Quincy Adams, except perhaps for the latter's father, John Adams. Hence Randolph's determination to use his position as Senator from Virginia to thwart and challenge the administration whose personalities he loathed as much as their principles.

This is how the American historian Charles M. Wiltse describes this colorful episode in the history of the Senate. "Day after day Randolph entered the Senate chamber booted and spurred, secured the floor as soon as he could, and talked -- for two, four, and sometimes six hours at a stretch, drinking porter, pacing up and down the room, hurling his thunderbolts with deadly effect into the enemy's camp."

This went on for three months until the day came when Randolph rose to speak on a particular resolution offered to the Senate, and to use it as an occasion to utter a series of extraordinary insults against both the sitting President, John Quincy Adams, and his Secretary of State, Henry Clay -- insults so stinging that Henry Clay felt compelled to challenge John Randolph to a duel, a challenge that Randolph accepted, though the duel itself resulted in harm to neither of the opponents.

And what was vice president John C. Calhoun doing while John Randolph was spewing forth his tirades and invective? According to Calhoun's biography, "Calhoun sat imperturbable in his chair," and failed to use his discretionary powers either to compel Randolph to cease from talking or to limit the severity of his vituperation -- a passivity for which he was rebuked by the partisans of Adams. (It should be recalled that Calhoun was Vice President to two men, both of whom ended by hating him -- his second President, Andrew Jackson went so far as to declare in his old age that his biggest regret in life was that he didn't hang John C. Calhoun when he had the chance.)

Here, in embryo, was the filibuster. It occurred because two brilliant men had, at one and the same time, used their discretionary powers in order to oppose the will of an administration they disliked. Randolph had used (or abused?) the legislator's right of free and uncoerced discussion, whereas Calhoun had used (or abused?) the Vice President's discretionary power to terminate discussion, not by terminating prematurely a discussion he didn't like, but rather by refusing to terminate three months' worth of vicious attacks on the two men who were, after all, Calhoun's bitterest rivals for the office of the Presidency.

To be sure, there was no deliberate collusion between Randolph and Calhoun. Once, during the course of his proto-filibuster, Randolph had addressed Calhoun with an excellent specimen of his spiteful wit: "Mr. Speaker! I mean Mr. President of the Senate and would-be President of the United States, which God in his infinite mercy avert...." But collusion or not, the result was a thwarting of the democratic process that the Senators themselves found sufficiently objectionable to introduce a new set of rules in 1828. Calhoun's refusal to rule Randolph's speeches out of order was met with an explicit acknowledgement that the presiding officer of the Senate had the power to shut up a man like Randolph, and, even more importantly, the Vice President's decisions on such matters could now be appealed to the entire Senate itself. Finally, there was a rule of relevancy that would have eliminated the kind of filibustering practices that became the trademark of twentieth century politicians like Huey Long, such as reading the recipes from cook books.

The Heyday of the Filibuster

This was how things remained until in 1872 Vice President Schuyler Colfax made a ruling that "under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending matter."

Okay, so the filibuster is not a two hundred year old tradition. But it's still a hundred and thirty-three year old tradition. Or is it?

In fact, the glory days of the filibuster ended in 1917. Between 1872 and 1917, the filibuster rule had been used with sufficient discretion by the various Senators that there was no pressing urgency to curtail the discretionary freedom of expression that Colfax's ruling had entrusted to each and every member of the U.S. Senate. After all, if no one threatened to abuse this system, why not let each Senator speak his mind, even if he did become a bit long-winded at times. Furthermore, it could be argued that the unlimited filibuster was merely another tool by which politicians could achieve compromise. If I can wear out the patience of my opponents, especially at the end of a session when everyone wants to go home, why not use this device as a way of achieving a consensus on a pending question.

Yet what happens when a small coterie of Senators decide to use the filibuster not to achieve a compromise solution, but simply to defeat the overwhelming will of the majority, and, furthermore, what happens when this coterie resorts to this device during a period of extreme national crisis, such as the crisis posed by the continuing German attack on American shipping immediately prior to our nation's entry into the First World War?

The small coterie I am referring to was known as "the willful 11" and it was composed of Progressive Liberals, the most famous of which was Senator Robert M. La Follette, Sr. Each member of "the willful 11" was genuinely and deeply horrified at the very idea of American involvement in the Great War that was being waged in Europe, with its mass slaughter ranging in the millions, and each was determined to use the filibuster against any and all government acts that could be seen as a step toward war, including Wilson's Armed Merchant Ship bill introduced in March of 1917.

It is one thing to filibuster against a minor bill affecting people's lives only marginally, and quite another thing to filibuster against a nation's efforts to prepare to fight a war, and it was the willfulness of the willful 11 that drove the Senate to reach for a procedure that would allow a way of terminating filibusters, provided it could be shown that the overwhelming majority of the Senate was desirous of this termination.

But just how overwhelming does this majority need to be?

The first cloture provision required two-thirds of the Senators "present and voting" to vote to end a filibuster, and this was the procedure in place up until 1949 when an effort was made to reduce the size of the supermajority required to bring about cloture, in the hope that by lowering the number of Senators needed to end debate, it would at last be possible to pass the various civil rights bills that, up until that time, had always suffered the same death by endless filibuster -- and this included the Federal bills against both lynching and the discriminatory use of the poll tax for the purpose of disqualifying black voters. The move to lower the number of the supermajority, however, badly backfired, and the new cloture rule specified that it was not enough to have merely two-thirds of the Senators "present and voting" to end a filibuster, but two-thirds of the Senators "duly chosen and sworn."

This, however, as we all know, did not settle the matter, and between 1949 and the present debate, the cloture rules have been eased, but certainly not until now has the possibility emerged that cloture could be achieved by a straightforward numerical majority.

The Democrats, then, have a very weak case in arguing that the filibuster is a two hundred year old tradition that must not be tampered with, since, as we have seen, the filibuster, in the modern sense, was not officially recognized until 1872, and since that time has been subject to various attempts to control or limit its usage, many of which, as Republicans point out, came from the Democrats themselves.

Nevertheless, the Democrats have one big valid point -- and it is one that deserves serious attention. But to understand this one big valid point we must go back to the two gentlemen who, without quite intending to, invented the filibuster, namely, John C. Calhoun and John Randolph. For it is in their own subtly constructed theory of politics that we can discover why the tradition of the filibuster should not be peremptorily thrown into the trash bin of history, and certainly not by an endangered minority that will increasingly face challenges to their very way of life and their deepest ethical commitments, and here I am referring to the Christian conservatives who have taken such a conspicuous role in the current debate over ending the filibuster.

Defending the Rights of the Minority

Both John Randolph and John Calhoun were deeply preoccupied with one of the central problems faced by any constitutional democracy, namely, how do you keep the majority from oppressing the minority? Yet neither of them had any faith in the ability of written documents to curb the abuse of power. One of Randolph's maxims was that only power can curb power -- not magic formulas written on parchment. The checks on power, to be effective, had to take the form of power: words and abstract ideals were not enough, and could never be enough. For Calhoun, the constitutional safeguards of a society were not to be found in a document, but in the willingness of men to resist, with physical force if need be, the inevitable encroachment of governmental power.

These encroachments, for both men, were inevitable given what they knew about the human heart. Men in general, they held, will always tend to pursue their own narrow self-interests. There were, of course, exceptions to this rule, but not enough to count on for any realistic political purposes.

Finally, and perhaps most importantly, both Calhoun and Randolph believed that men in pursuing their self-interests will naturally be inclined to try to maximize their control over the policy of the government under which they live. Like their close contemporary, the English economist David Ricardo, both men believed that petty self-interest would lead men to struggle for positions of political power and influence, which, once secured, would be used to further their own agendas. And in any nation, what better position of power to strive for than the power constituted by a strong central government -- precisely the kind of government that, virtually by definition, was capable of crushing minority resistance, if any minority dared to oppose its will.

In their case, the minority in question were the southern states, two of which they represented, while the majority was composed of the rest of the United States -- an imbalance of power that both saw as threats to the survival of the southern way of life. If a majority of the other states ganged up on the south, what safeguards would be effective to defend the interests of the southern states? Or, as John Randolph put it in an early debate on the tariff, if the United States is to be governed by simple majority rule, then the Northern majority can rule to abolish slavery in the South, and eventually will rule to abolish it -- it would be only a matter of time.

The Doctrine of the Concurrent Majority

Calhoun drew the same conclusion, but took it for granted that if the North tried to abolish slavery, or, indeed, even began to move in that direction, then the southern states would eventually be forced to play the American nineteenth century version of the nuclear option: first they would nullify any Federal laws or measures that they found oppressive; then, if challenged, they would up the ante, and would threaten to secede from the Union, and finally -- in playing what might be called the thermonuclear option -- the oppressed states would vow to resist force with force if the Federal government attempted to coerce obedience at bayonet point.

Contrary to Andrew Jackson's surmise, Calhoun had no desire whatsoever to see the Union fall apart, and sincerely believed that he had come across the only method by which such a tragedy might be avoided. To avoid civil war, Calhoun argued that on matters of grave importance to any particular section of the country, what we would call the "hot button" issues, simple majority rule was not enough, and that, in these cases, majority rule should be set aside in favor of a more inclusive criterion of consensus -- a standard that Calhoun, in his posthumously published Disquisition on Government, would call the doctrine of "the concurrent majority."

The intuitive idea behind this concept is simple to grasp. If you are trying to keep any organization together, a business partnership, a country club, a soccer team, or a church, you do not want it making decisions that will alienate and drive out from your midst a large body of your associates and/or teammates. Indeed, the most extreme version of the concurrent majority is the use of the black ball by members of college fraternities -- a tradition that goes all the way back to the Spartan "herds" of boys. In this case, just a single nay vote by any one member of the fraternity is sufficient to block the admission of a candidate.

This extreme form of the concurrent majority became, astonishingly enough, the principle by which the Polish Parliament operated for over the course of several centuries. Any member of the Parliament had possessed what was called the Liberum Veto: the right to veto any piece of legislature at his discretion -- a right, however, that obviously depended heavily the members of the Parliament using their own discretion in the exercise of this particularly Polish form of the nuclear option.

Calhoun was far too realistic to advocate the adoption of the Polish model -- especially a half century after the model's discretionary extravagance had lead to the partition and eventual disappearance of an independent Poland. Yet obviously Calhoun was aware that between the extreme of the Liberum Veto and the other extreme of simply majority rule there existed a whole host of options.

The critical thing for Calhoun is that, when it came to the kind of things over which people get angry, such as tariff and slavery in his time, or abortion and gay marriage in our time, there is always a standing danger that those who feel passionately about such issues would want to get their hands on the source of ultimate power within their society, in order to use this power to impose their will on those who were prepared, with equal but opposite passion, to resist this imposition with all their might -- even, as occurred in 1861, to the point of civil war and battlefields covered with the corpses of young American boys and men.

Democracies and Political Passions

The anger-arousing "hot button" issues, Calhoun realized, are always dangerous in any society, but they pose a far greater danger in a democracy than they do in any other form of government -- though the greatest danger of all was the combination of democracy and a strong central government, such as began to emerge in the age of Jackson. In such a democracy, any two sides that are violently opposed to each other will have available to them various devices by which they can attempt to seize control of the government, in order to use its great concentration of power to enforce their own views on their political opponents. This being the case, is it any wonder that, in strongly centralized democracies, power struggles become a constant feature of political life; indeed, become the very essence of political life -- struggles that are inevitably slightly more sophisticated versions of King of the Hill, in which the various opponents are willing to use any means necessary to rise to the top, and to stay there for as long as they can possibly get away with it?

The Achilles' heel of all democracies, and the explanation for why so many of them fail, lies in this ceaseless struggle. Each party, each faction becomes increasingly preoccupied with getting power or holding on to power. But because power comes from the rule of the majority, the trick to obtaining power is to get the majority of the population sufficiently worked up and disturbed over a "hot button" issue, and then to artfully channel their emotional agitation into support for a political candidate. But, obviously, such a policy, while beneficial to the interests of the parties that exploit it, is disastrous to the interests of the nation as a whole. Politics, instead of being the art of compromise, becomes the tactic of the demagogue, while politicians, instead of working to settle differences between opposing parties, devote themselves to inflaming their partisan passions, in order to exploit their quarrels for their own purposes.

According to Calhoun, the only defense against this fatal tendency within any democracy is to make it extraordinarily difficult for any partisan faction -- even when the faction constitutes a numerical majority -- to obtain control over the central resource of governmental power. And how else to achieve this goal than by setting up a series of obstacles on the path that leads toward the consolidation of central power, thereby lessening the odds that the citadel of power will fall into the hands of zealots out to impose their own will on the rest of society.

Calhoun did not want the Liberum Veto; but he wanted to make sure that any considerable segment of American society could veto the effort of a majority to enforce their will upon them. His own solution was to require, on hot button issues (such as tariffs and slavery), the concurrence of three-fourths of the various states that made up the confederation known as The United States of America. But there is no question that he would have approved, as a partial substitute, the most expansive interpretation of the filibuster rule, as his conduct in dealing with John Randolph's proto-filibuster certainly implies; nor is there any doubt that he would have regarded a filibuster against judicial nominations as a perfectly legitimate means of political self-defense.

What would the Christian right have thought about filibustering the judicial nominees of a President who was determined to fill the federal courts with judges who were pro-choice and who were willing to rule in favor of gay marriages? Can anyone seriously doubt that, under these circumstances, Democrats would be denouncing the filibuster, while conservative Republicans would have been upholding it as a sacred principle of our very peculiar political system -- as, indeed, it is.

America has survived not because it is a democracy, but because it has managed to keep its democratic upheavals in check, at least for much of its history, and it has done this through an amazing array of tricks and devices, none of which crossed the minds of the men who wrote and signed the Constitution of the United States. One of these tricks was the decision of John Marshall to make the Supreme Court of the United States the final interpreter of the Constitution for all the states in the union, as opposed to having the Supreme Court of each state be the final arbiter for itself alone -- something the Constitution left undecided. Another of these tricks was the development of the filibuster as a method to hold at bay majorities that wished to ride rough shod over minorities. Another was the trick of forcing cloture on those who abused the right to filibuster during a time of national emergency and crisis.

Today there is a new trick that has already shown some degree of usefulness as a means of political self-defense, namely, the so called nuclear option. But, as our earlier examples have shown, the threat to abolish the right to filibuster against judicial nominations, far from being a violation of a sacred tradition, should rather be looked upon as simply yet another trick that our ever inventive political system has brought forth, and for precisely the same reason that all the earlier tricks were introduced. This means that, in the ultimate analysis, how we evaluate this new trick will depend entirely on whether it turns out to be effective in its purpose.

Our Most Recent Nuclear Option

The rationale behind the Republicans current nuclear option is self-evident. Many culturally conservative Americans have become thoroughly disgusted with a judicial system that no longer has any interest in or sympathy for their own deep-seated ethical conviction. They see the judicial system as the true citadel of power in American society today -- after all, it is not legislatures that decide on such contemporary hot button questions as abortion and gay marriage, but the courts. Yet what remedies are there in our current bag of tricks by which the judicial system can be forced to represent the will of the people whose lives they control so intimately and so thoroughly?

Thomas Jefferson and John Randolph offered a solution to this dilemma in the impeachment of Judge Chase: if a judge's decisions offend the people's sensibilities, then the people, through their representatives, could simply remove the judge at their discretion. For better or for worse, however, this option -- the nuclear options of its era -- became one of the many American political roads not taken. And yet it would be wrong to say that the unsuccessful impeachment of Judge Chase completely failed in its purpose. It was a healthy reminder, even to John Marshall, that judicial review, like all forms of power, if pushed too far, could provoke a desperate reaction by those who felt themselves the oppressed victims of this power.

This brings us to a somehow paradoxical conclusion. American politics has been repeatedly punctuated by the threats that constituted the nuclear options of their day. In addition to the impeachment of Judge Chase and the Nullification Proclamation of South Carolina in the 19th century, there is FDR's threat to pack the Supreme Court in the 20th century; yet each of these threats, while failing to achieve their official purpose, ended up, nevertheless, by playing a decisive role in the working out of a generally desired compromise. The Supreme Court did get more liberal after FDR threatened to pack the court, just as the tariff of abominations was drastically reduced after the nullification threat. Each nuclear threat helped, in its own way, to bring about an acceptable compromise -- and a compromise, it should be noted, that would probably not have been achieved if the nuclear option had not been threatened in the first place. Bluffing is often rewarded, precisely because bluffs are invariably fraught with the danger that they might be called.

If there is a sacred tradition in American politics, it is the willingness of otherwise prudent men to bluff their way up to the very brink of disaster, and then back down. We have done so over and over, and let us hope that we will do so again. The alternative, after all, is nothing short of a divided society, and an uncivil war in which the very political process itself is nullified by an excess of partisan passion.

Lee Harris is the author of Civilization and Its Enemies.

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