- The Washington Times - Saturday, May 21, 2005

The original purpose of the filibuster was to ensure no senator ever suffered the indignity of having a speech cut short. The House of Representatives in its earliest years similarly permitted unlimited debate, but it proved impractical where there were so many more members than in the Senate.

And so the right to filibuster survived only in the august upper body of Congress. It was not long, however, before senators began to pervert the right to speak into a tool of obstruction and extremism. It’s an ugly history.

One of the earliest such abuses was performed by Sen. John C. Calhoun of South Carolina in 1841 when he took advantage of the filibuster to obstruct legislation he considered hostile to slavery in the South. This tradition of using the filibuster to delay and obstruct bills that would ensure minority rights continued well into the 20th century.

In 1957 Sen. Strom Thurmond of South Carolina followed the lead of his predecessor Calhoun and took the Senate floor to talk for a record 24 hours and 18 minutes in an attempt to block civil right legislation. Perhaps the most notorious filibuster against civil and minority rights was performed by Democratic Sen. Robert Byrd of West Virginia, who in 1964 filibustered to prevent the Republicans from passing the Civil Rights Act of 1964. (It’s not commonly known today that more Republicans than Democrats voted for the Civil Rights Act).

Contrary to assertions that filibuster abuse is a noble and enshrined “Senate tradition,” Professor Steven Calabresi has recently pointed out there were no more than 16 filibusters during the entire 19th century. But from 1970-1994 alone, there were more than 195 Senate filibuster abuses.

Far from “protecting minority rights,” the most pernicious abuse of the filibuster has been for the exact opposite purpose — obstruction of civil rights bills that would protect minorities from discrimination.

One reason for the recent acceleration of Senate filibuster abuses is that the traditional filibuster has been altered beyond recognition. Prior to 1964, a filibusterer actually had to take the floor and talk. The speech could be total gibberish, but the senator had to talk. When he got tired of reading from the dictionary or “War and Peace” and needed food, the filibusterer retired to get much-needed sleep and sustenance.

This requirement to actually talk at least acknowledged the filibuster’s original purpose — to ensure no senator’s speech was ever cut short.

At some point, a senator wishing to filibuster got lazy and asked if he could conduct a “virtual” filibuster — i.e. just pretend to speak and instead go home, watch TV but enjoy the fruits of obstruction by merely stating his intent to obstruct. Still worse, the Senate began conducting other business while allowing the virtual filibuster to a block particular bill.

The virtual filibuster soon caught on, and doubtless explains the explosion in filibuster abuse in recent years.

Returning to the traditional form of filibuster, which required actual rather than virtual talking, would reduce filibuster abuses dramatically, if for no other reason than senators would be restrained by the physical limits of the human voice.

If a filibustering senator actually had to stand up and talk to filibuster, it’s difficult to imagine any could manage to sustain the obstruction for years without food or sleep. And if no other business, such as passing the national budget, could be conducted, it is doubtful an enraged citizenry or their senators would long tolerate this abuse of the democratic process.

Robert Hardaway is professor of law at the University of Denver and author of 14 books on law and public policy.

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