Good luck making sense out of Constitutional procedure.
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The epic filibuster standoff that created the 60-vote Senate
By Zachary B. Wolf, CNN - 4h agoThe epic filibuster standoff that created the 60-vote Senate
Democrats failed spectacularly this week to change filibuster rules in the Senate.
The end results are twofold:
The total collapse of Democrats' effort to enact a national voting rights standard.
The 60-vote threshold to overcome the filibuster and pass legislation in the Senate seems as immovable as ever.
But the 60-vote threshold is relatively new. It was established after an epic fight in the 1970s, an era that today seems like something from an alternate universe:
Southern senators were Democrats.
A Republican President worked with a Democratic Senate.
Legislation was routinely passed with help from both parties.
And it took 67 votes to break a filibuster.
Democrat vs. Democrat
In the 1970s, it was a Southern Democrat, Sen. James Allen of Alabama, who was recognized as the undisputed master of the filibuster and all other delaying tactics.
"By this time the Southern segregationists had lost the major battles over civil rights, but Allen still stood for a small reactionary bloc that continued to fight rearguard actions against almost all social justice legislation," wrote former Sen. Walter Mondale of Minnesota in his 2010 memoir, "The Good Fight: A Life in Liberal Politics."
"I felt the filibuster was allowing an embittered minority to hold the country back from correcting long-standing injustices," Mondale wrote.
Time to change
Mondale, like many senators, respected the idea that the Senate, which represents states rather than voters, should not be ruled by a simple majority. Filibusters had helped progressives like him to "kill ill-considered antibusing legislation when the country was in a panicky backlash against school integration," he wrote.
But the chamber, then as now, was becoming paralyzed.
Mondale had tried multiple times to lead efforts to scale back the 67-vote Senate, in 1969 and 1971.
A long way from two-thirds to three-fifths
By 1975, the vast majority of senators were ready for a change, even if they weren't ready for the simple majority rule most Democrats are pushing for today.
Whittling down from 67 votes to 60 votes to limit debate -- that is, from two-thirds of those present in the 100-member Senate to three-fifths -- seemed like a reasonable step in the right direction.
Working with Sen. James Pearson, a progressive Republican from Kansas, Mondale hatched a plan to outmaneuver Allen and change the Senate forever.
Filibustering the hard way
Unlike today, when senators simply ask for a 60-vote threshold, back then it required parliamentary know-how and the stamina to stand on the Senate floor for days.
This may sound pedantic and boring, but in Mondale's telling, the effort to outwit Allen is riveting and engaging, lasting more than a month and featuring outbursts, exhausting sessions and the very real possibility of failure.
When lawmakers like President Joe Biden, who was in the Senate watching this 1975 episode, talk about returning to a "talking filibuster," this is what they mean.
Cherry glucose and stamina
Another person who had a front-row seat to the 1975 Senate filibuster change is Robert Barnett, who in the subsequent 47 years became a Washington superlawyer -- he has represented everyone from Barack Obama and George W. Bush to Mitch McConnell and John Lewis.
In 1975, he was a top aide to Mondale and next to his boss for much of this drama.
"I vividly remember sitting there next to Senator Mondale in the staff chair and Jim Allen was sucking tubes of glucose to keep his energy going during the course of his long standing talk," Barnett said in a recent Zoom interview from his office.
Barnett said it was not clear how Republican Vice President Nelson Rockefeller would rule on points of order -- though he ultimately sided with the reformers, allowing the movement to go forward.
"It was a tense, tense time, very suspenseful and fraught with heart and strong feelings," Barnett said.
Study the rules
Allen was the mastermind of "reviving the filibuster," according to his New York Times obituary. He would use an encyclopedic knowledge of Senate rules to "tie up the Senate for days and to wring concessions from his opponents," according to the Times.
Allen's reputation was universal, according to numerous documents and news clippings shared with CNN by Daniel Holt, assistant historian in the Senate Historical Office. Holt also noted the accounts in Mondale's memoir that form a basis for this story.
Courtly and polite, Allen was liked by his colleagues even as they feared his ability to stop things up on the Senate floor.
While most senators spend as little time as possible on the floor, Allen relished it, volunteering to preside over the chamber and frequently winning the Senate's "golden gavel" award for hours logged.
Allen's former aide Tom Coker is still working in Alabama politics, and said in a recent phone interview that Allen learned parliamentary procedure during time spent in Alabama's state government, which also features a filibuster.
"He spent a great deal of time every week reading the Senate rule book. He read it so many times I thought he would wear the pages out," Coker said.
'Whose ox is being gored?'
Coker said Allen viewed slowing things down as a duty.
"If these things are so important, they ought to be able to withstand debate," Coker said of Allen's rationale.
In a January 1975 profile in Nation's Business Magazine -- just before the threshold to break a filibuster was whittled to 60 votes -- Allen explained his political outlook.
"It depends on whose ox is being gored," Allen said of senators who had previously engaged in filibusters and were now complaining about his actions. "They are all against it until it comes time to use it themselves."
The most chaotic day
In one tense moment during the 1975 filibuster debate, then-Senate Majority Leader Mike Mansfield, the Montana Democrat, argued, along with Allen, that the Senate rules carried from session to session rather than requiring a new vote every other year. Vice President Rockefeller, a Republican, in a shocking and unexpected move, sided with the filibuster foes that rules could be changed by simple majority.
Mondale describes roars erupting from the likes of Allen.
It was the most "chaotic" day of Mondale's Senate career and it featured votes on matters that, to the uninitiated, seem like complete silliness.
Senators, per Mondale, actually voted on this gobbledygook:
"... a motion to table a motion to reconsider a vote to table an appeal of a ruling that point of order was not in order against a motion to table another point of order against a motion to bring to a vote the motion to call up the resolution."
The rise of the Allen filibuster
The concept of unlimited debate in the Senate has been a matter of debate for hundreds of years. One notable echo of the current fight over voting rights: a filibuster in 1890 killed a federal voting bill that would have policed polling stations in Southern states.
It was not until 1917, when most senators wanted to cut off debate and allow the country to join the fight against German aggression, that the concept of "cloture" was created by the Senate's Rule 22. It required two-thirds of senators present -- 67, if no senators are absent -- to end debate. With it, the country moved toward World War I.
But there were never more than a handful of cloture motions per two-year Congress. That is until 1971-1972, when the number of cloture votes more than tripled to 20. And then in the 1973-1974 Congress there were 31.
Those figures seem quaint today, when there have been 158 such cloture votes in about a year.
But back then, the 31 cloture votes in two years were frustrating everybody and things were grinding to a halt. In behavior that mimics the system today, the threat of a filibuster by Allen could get the Senate leadership to back down, Mondale wrote.
A compromise hatched
The Senate turned hard against Allen in 1975 as his filibuster of the effort to whittle away at the filibuster carried on.
Opinion was shifting toward reform and Senate Majority Leader Mansfield and his deputy Sen. Robert Byrd of West Virginia feared Mondale and his Republican counterpart Pearson, armed with friendly rulings from Rockefeller, would go too far.
Mondale describes being called into Mansfield's office and offered a compromise by Mansfield and Byrd, who wanted to regain control of the chamber.
"They could see the tide turning toward reform, and they were looking into the abyss -- a move for cloture by simple majority," Mondale wrote. "But they were also sick and tired of Jim Allen and the way he had hijacked the Senate and caused so much frustration."
Mansfield and Byrd tweaked the reform proposal from three-fifths of senators present, which could mean anywhere from 54 to 60 senators, to three-fifths of all senators, 60 votes at all times, to limit debate.
But they insisted on something else: Two-thirds of senators would have to agree on future rules changes. Mondale and Pearson accepted.
Only 56 senators voted for the 60-vote Senate
Here's one major difference between 1975 and today.
Back then, 69 senators voted to end debate and break the filibuster on Mondale and Pearson's reform plan. But it passed with fewer, just 56 votes to 27.
There was an acknowledged difference between debating an issue and approving it.
Today, voting to end debate on an issue and allowing it to get a vote is like endorsing it.
The way around Senate rules
That requirement for 67 votes to change Senate rules still stands, but both Democrats (in 2013) and Republicans (in 2017) have gotten around it by relying on the ruling of the presiding officer to change the way the Senate handles nominations.
If and when senators finally do end the 60-vote threshold to overcome the filibuster and move toward majority rule, it seems likely to be done in this way, by a simple majority and a friendly presiding officer.
'This is over'
By the end of the 1975 debate, Mondale describes an encounter in the Democratic cloak room with Mansfield and Allen, who was asking for tweaks to the compromise.
"Allen looked like a broken man," Mondale wrote. "He was on the verge of physical collapse and his face was ashen."
A few days later, Mondale wrote, Allen tried to delay the final vote on the new rules and was unable to find any other senator to second his delaying tactics. Over the course of 20 minutes, Allen tried 18 times to find a second, but with no success, according to Mondale. "That was the Senate saying to Jim Allen, 'No, this is over.'"
All was not over for Allen
Allen adapted to the new rules and took up delaying legislation he didn't like.
Among his final acts in the Senate before he died was a filibuster, ultimately unsuccessful, of the decision to give the Panama Canal to Panama.
"He was not under the illusion that he was going to win the vote. He was just hoping to change some public opinion," Coker said.
'A politician of his time'
Allen was a segregationist when he served as Alabama lieutenant governor and, for most of his career, was a close ally of George Wallace, the state's longtime governor.
Allen died of a heart attack in 1978. Unlike Wallace, who sought forgiveness late in life for his support of segregation, Allen did not undergo such an evolution on civil rights during his lifetime.
But Coker argued Allen had worked with the Black community in Alabama and with Jimmy Carter.
"He was he was a politician of his time," Coker said. "But he also had a good heart."
Coker argued that Allen was realistic about what he could accomplish by slowing things down in the Senate.
A crowning achievement
Mondale, although he went on to become vice president under President Carter, viewed changing the filibuster as one of the major accomplishments of his career.
"Without diluting the Senate's tradition as a deliberative body, our reforms broke the hold of a reactionary minority," Mondale wrote.
In the years between 1975 and his 2010 memoir, as the Senate again ground to a halt, Mondale endorsed more reform. Back then, it was Democrats teaming with Republicans to square off against Democrats and Republicans. Today, after 47 years of the 60-vote Senate, the party line rules.
"It sounds now like a long time ago and small potatoes but it was a big deal because it fundamentally altered the way that the Senate would do business," Barnett said, arguing "it was remarkable, even then, to build a bipartisan coalition to do something that wasn't run by the leadership."
The filibuster was just getting started
Now, a senator simply says he or she wants to require 60 votes and gets it. Democrats and Republicans see little political upside in working across party lines -- with some important exceptions, like criminal justice reform during the Trump presidency, and early coronavirus relief bills and the infrastructure package passed under Biden.
"The bottom line is that in a significantly less partisan Senate, lawmakers from both majority and minority party had incentives to make the Senate work better," Brookings Institution scholar Sarah Binder wrote in an email. "That's harder (though not impossible) to see happening in today's Senate."
The examples of bipartisanship are the exception to the rule.
A partisan tool
The history of the Senate is marked by politicians in the minority using the rule book to slow down or kill things they didn't like.
As the rules were changed, the defenders of minority opinions got creative.
"The broad arc of history points towards the degradation of the filibuster over time," the University of Chicago political scientist William Howell said in an interview, noting the power to block things has been changed at key points in the 1800s, during World War I and then in 1975.
Still, the filibuster is used now more than ever as parties have grown more polarized.
"The kind of norms that govern when it's appropriate to use a filibuster have changed dramatically," he said.
How would Allen view today's filibuster?
Coker, who worked with Allen during his entire Senate career, weighed in on what his former boss would think of today's filibuster.
"I think that he would view it as a lazy man's filibuster," Coker said. "If he was going to filibuster something -- he truly believed that, that there was a side of the story that was not reaching the people and he would want to be on the floor, making those points."
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