February 19, 2010 Volume 111 Number 4

Union-backed legislation hobbled by Senate’s abuse of filibuster

By DON McINTOSH, Associate Editor

It was a moment of heartbreak for the American labor movement. After working hard to elect a Democratic super-majority in the U.S. Senate, the AFL-CIO fought for a bill that would make it easier for workers to unionize, and harder for employers to fire pro-union workers. But the bill failed to overcome the Senate’s “filibuster” rule, by just one vote. That was the Labor Law Reform Act, in 1978.

Senate Democrats appear headed for a cruel repeat of that in 2010, as time runs out on the Employee Free Choice Act, a labor law reform that could reverse organized labor’s downward slide. In 2007 it passed the House 241-185 but failed to overcome a filibuster threat in the Senate.

History is littered with the memory of bills that passed the U.S. House only to die in the Senate because of the filibuster rule — in which opponents speak at great length, or threaten to, in order to delay or prevent a bill’s passage. During the early 20th century, racist mobs lynched more than 4,000 Americans, mostly black. Three times, the House passed federal anti-lynching legislation which then died in Senate filibusters.

The U.S. Constitution makes no mention of the filibuster, saying only that “each house may determine the rules of its proceedings.” Instead, the filibuster is an artifact of the Senate tradition of unlimited debate. In the 19th century, opponents of a bill would use that tradition to try to talk a bill to death, speechifying for hours and days, like Jimmy Stewart in the movie Mr. Smith Goes To Washington.

Exasperated by the filibuster of a war-readiness bill, President Woodrow Wilson declared in 1917 that “a little group of willful men … have rendered the great government of the United States helpless and contemptible.”

Led by Wilson, the filibuster was reformed: Two-thirds of the Senate could vote to cut off debate and vote on a bill. That was changed to three-fifths in 1975, a decade after the filibuster had delayed passage of civil rights legislation for seven years.

Lowering the cutoff to 60 votes was a turning point for the filibuster, says University of Miami political scientist Greg Koger, author of the forthcoming book “Going to the Mattresses: The History of Filibustering in Congress.”

“That’s when the Senate stopped waging old-school filibuster fights,” Koger said, “and instead started saying, ‘If we’ve got the votes to cut off debate, we win; if we don’t, we lose.’”

The problem is, that practice makes it much easier to filibuster. A filibuster used to be a feat of endurance: Opponents had to speak at great length on the Senate floor. Now, filibustering means voting not to close off debate, and the onus is on a bill’s supporters to round up 60 votes — out of 100 senators — to shut it off.

“In the old days, you’d only filibuster if it was something you were really passionate about,” Koger said. “These days, because there’s no effort involved, it is much easier to filibuster on things that are not of great importance.”

Use of the filibuster is at an all-time high. By one count, there were 139 in the 2007-08 Congress, compared to one every two years in the 1950s.

And the filibuster’s effect is not just to defeat bills, but to change the character of those that pass. To overcome a filibuster, a party in power will compromise with opponents — and less loyal members. Sometimes the price of a vote is “pork” — money for pet projects in a senator’s home state. Other times, getting to 60 means ridding a bill of important parts, even though they may have majority support. The Senate’s stimulus bill reduced job-creating public works to make room for more tax cuts. The Senate’s health care reform bill dropped the much-publicized public insurance option. Seeking 60 for passage of the Employee Free Choice Act at a time when support from several Democrats was wavering, union backers were resigned to go along with cutting the “card check” union recognition portion of the bill.

It didn’t matter: The Employee Free Choice Act never got a vote during the time Democrats held 60 Senate seats. The year 2009 was a painful waiting game for labor, first for Minnesota Democrat Al Franken to be seated, then for Ted Kennedy to recover, and finally for Massachusetts voters to elect Kennedy’s replacement. Their election of Republican Scott Brown closed the chapter.

Now the fate of the Employee Free Choice Act will depend on finding a single Republican vote (a challenging prospect) — or reforming the filibuster rule.

If they choose to do so, Democratic leaders would have a number of avenues to get around the filibuster. The simplest, though most radical, would be to eliminate the filibuster rule by simple majority. Senate rules say it takes a two-thirds majority (67 votes) to change the rules, but an 1888 Supreme Court decision affirmed it can do so with a simple majority. That’s the so-called “nuclear option” Republican leaders considered in 2005 when Democrats were using filibuster threats to block some of President Bush’s judicial nominees.

Another option would be to pass major legislation through a process known as reconciliation. Under a Senate rule in effect since 1974, reconciliation bills can’t be filibustered. Republicans used reconciliation to pass the three successive Bush tax cuts. Reconciliation is only used on budget bills, not policy bills, so reconciliation couldn’t be used to pass new restrictions on insurance companies, for example, or the Employee Free Choice Act.

Option three would be to let opponents of a bill actually filibuster — talk at length on the Senate floor. That hasn’t happened since 1992, but it could happen if an issue is important enough. Oregon got its statehood when supporters outlasted a filibuster by Southern slave state senators opposed to its admission as a “free” state.

In theory, the length of a filibuster is limited only by the determination of both sides to prevail; today’s 41 Senate Republicans could stretch a filibuster out to Election Day. But in practical terms, one or the other side would relent, and public judgment could determine which side prevailed.

So far, Republicans seem to have shown a greater propensity to filibuster than Democrats: Democrats held up some federal judges nominated by President Bush, but Republicans have blocked even low-level executive appointments by President Obama. In 2002, a Senate Democratic majority approved all five of Bush’s appointments to the National Labor Relations Board (NLRB) in one unanimous vote. In 2010, the first act of the Republican minority after Scott Brown was sworn in Feb. 4 was to filibuster Obama’s NLRB appointments.

Democrats have ways to get around the filibuster. It will come down to political will whether they use them. 

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