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Perhaps the biggest obstacle to demolishing the filibuster is the cynicism and defeatism of those who assume this can't be done. The obstacles are fearsome, but they cannot be worse than the obstacles faced by the generations of activists who called for, and eventually won, direct citizen election of US Senators via the 17th Amendment to the US Constitution, ratified April 1913. I mentioned this in comments to a recent diary on the filibuster by Chris, and there was some objection to the comparability of the fight for the 17th to the filibuster, so I wanted to elaborate on the magnitude of this victory to make clear that yes, bigger and more difficult Senate reforms have been done than ending the filibuster.
No mistake about it, the 17th Amendment was an epic battle, one that began as early as 1826 (when the first amendment attempt appears in Congress). After its passage, Wilson's Secretary of State, William Jennings Bryan described it superlatively as the greatest reform attained in over a century. It's hard to agree with that, given the importance of the 13th, 14th and 15th Amendments, but does make it clear that a major contemporary populist figure viewed this as a big victory.
Consider the situation prior to its passage: The amendment to require Senators to face election must get passed by two-thirds of the Senate, a chamber of men selected, not elected, by the legislatures of their home States (sometimes with only plurality support). After this, three-quarters of the State legislatures would then have to ratify a measure decreasing their power and influence over the more powerful chamber in the national government. All the built-in incentives were opposed to this.
Here's how the New York times described the issue, the day after the 17th Amendment passed Congress in 1912 (transcribed from PDF at link by me, errors mostly mine):
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SENATORS BY DIRECT VOTE PASSES HOUSE
Proposed Amendment Will go to the State Legislatures for Approval
SENATE AMENDMENT WINS
Federal Supervision of Elections Provided For--Agitation for Change Has Lasted 86 Years.
Special to The New York Times.
WASHINGTON, May 13. -- The long fight which began in 1826 for an amendment to the Constitution, providing for the popular election of United States Senators, is nearer success to-night than ever before in the country's history, as a result of the action of the House of Representatives to-day in accepting the direct e[l]ections joint resolution as passed by the Senate with the Bristow constitutional amendment.
[...]
The first Congressional resolution, calling for direct election of Senators was offered in 1826. Up to 1911 attempts to amend the Constitution to provide a uniform system of popular Senatorial elections failed through the steady refusal of the Senate to pass a resolution submitting such an amendment to the States. The House had passed resolutions proposing such an amendment on July 1, 1894, May 11, 1898, April 13, 1900, and Feb. 13, 1902. In each case the Senate refused to concur. In the Sixty-first congress, Senators Borah and Bristow forced the question to the front. On Jan. 11, 1911, Senator Borah was directed by the Senate Judiciary Committee to report his resolution.
Although this article is written after the House passed the amendment, as the last paragraph quoted makes clear, the Senate had been the far bigger obstacle, as the House had passed direct election amendments at least four times previously (The NY Times piece on the Senate passing it is here). The House's problem was a familiar one today, they didn't like a change to the amendment that the Senate had made (leaving federal powers over elections for Congress in place) but ulimately buckled down and accepted the Senate's version, presumably fearing that nothing else more acceptable to them could pass the Senate.
Clearly, a lot of ground work went into this fight before the measure actually passed the Senate. Wikipedia has a few paragraphs that outline the influence of the media, through Cosmopolitan's famous series The Treason of the Senate, published in 1906, and the grassroots State-by-State pressure that saw 29 States already electing their Senators by Statewide referenda. This last probably led to a familiar type of gutless Democratic "compromise" measure to allow States to elect Senators if they want to, as if that would require a constitutional amendment, considering a majority of States were already doing it.
Despite the length of the fight, it was clearly worth it. It has mattered a great deal. The provision for electing Senators directly allowed the Democratic gains in 1930, 32, 34 and 36 to translate into a Senate with 47, 60, 69 and finally 76 Democrats (out of 96 Senators). In fact, even in 1912, as Woodrow Wilson came to office, the movement to directly elect Senators had already succeeded in passing some form of direct election of Senators in 29 states. This allowed the Democrats to take control the Senate, which would prove important for many of Wilson's progressive reforms (like tariff reduction and early labour laws). Without the 17th Amendment, what would have happened to the New Deal? Or the Great Society? Some may feel that this reform was "inevitable," that some kind of automatic, organic shift in the cultural zeitgeist was going to make Senate elections a veritable societal necessity which no group of recalcitrant Senators or State legislatures could resist. Possibly, however the Electoral College is still around and foiling popular democracy. A 1969 attempt to eliminate it even passed the House, but (surprise), was blocked in the Senate. President Carter tried again in 1977 to no avail in the Senate. Perhaps the National Popular Vote constitutional end-run scheme will succeed, but to date only 5 states have enacted compact laws. Inevitability hasn't worked here.
So these issues can grind on indefinitely under unflagging conservative opposition. And victories are not necessarily eternal, as contemporary opponents of democracy have even dared to called for its repeal, including Zell Miller in his final Senate floor speech. They're not likely to succeed, but an "F-" for their intentions and effort.
As for the filibuster, what will fix it is the concerted effort of those who work to change it. Awaiting for the zeitgeist to make it unacceptable isn't going to work, and assuming it is futile is a self-fulfilling prophecy. The last major reform to the filibuster was in 1975, it is long overdue. |
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