"The right of speech!" John C. Calhoun used these words to defend his actions on the Senate floor in the summer of 1841. His great adversary Henry Clay had introduced legislation trying to resuscitate the Bank of the United States after Andrew Jackson had let its charter expire during his second term. The Bank was hated by Southerners like Calhoun because it seemed to disproportionately benefit northern interests, and now Calhoun wished to talk this effort at resurrection back into the grave whence it came.
Clay moved to close debate. A group of Southern senators rose to Calhoun's defense. Clay had the votes to force the issue, but he chose to back down and the modern filibuster was born.
Calhoun was a defender of the Southern slaveocracy and the principal theorist of secession. He was a willing, witting advocate for a morally loathsome system, and his ideas, put into practice by a later generation of hotheads and fanatics brought on the Civil War and the ruination of Calhoun's own beloved South. Not much can be said in Calhoun's favor. But he did correctly identify the core value preserved by the filibuster.
That value is speech. The filibuster is nowhere to be found in the United States Constitution. It is not part of America's organic law, but belongs rather to the aristocratic courtesies senators once expected. The Senate, it must be remembered, in early nineteenth-century America still thought of itself as a pale replica of the House of Lords. Its members were not elected directly by the people, but indirectly, by state legislatures. The Senate's six-year terms, furthermore, were meant to place even greater insulation between senators and the buffets of popular whims and fancies.
Despite these origins in a distant and alien place and time, the filibuster still serves a valuable public purpose. That purpose is to accord to members of a Senate minority the right to state their views compellingly and at length so as to make their case to the American people. The filibuster is about grand theater. There was a time when senators would sleep on cots in hallways while speakers engaged in feats of remarkable physical endurance and mental agility, standing on weary legs on the Senate floor, wracking their sleep-deprived brains for the words that might let them prolong the fight another hour, another day, before the all-but-inevitable defeat.
This type of filibuster served the public good. It allowed the electorate, the people, to take the measure of the interests at stake and the character of those who wished to thwart Senate business in the name of some higher purpose.
Robert M. La Follette (1855-1925), known as "Fighting Bob," earned his nick name through his aggressive use of the filibuster. This great defender of the rights of labor and economic justice for all first gained national fame in 1908 for his filibuster of an obscure currency bill. He spoke continuously for a then-record 18 hours, 23 minutes in his futile attempt to kill the legislation.
But the filibuster he organized to block passage of the Armed Ships Act in the spring of 1917 is the one for which he is remembered today. All concerned knew that enactment of this bill meant war with Germany. The idea was to equip merchant ships with the heavy weaponry needed to exchange fire with German submarines should the ships come under attack. It meant the abandonment of all pretense of neutrality and guaranteed an armed confrontation that would, its backers hoped, be the triggering mechanism for America's entry into World War I.
La Follette and a small circle of anti-war Senators -- progressives from the prairie West and populists from the South -- organized to filibuster the bill, and they so monopolized Senate business that the legislation died when Congress was forced to adjourn. A frustrated Woodrow Wilson then accomplished the arming of merchants ships administratively, through executive decree, and the glide path into the sanguinary folly of World War I was cleared of obstacles.
Through main force of personality and the nobility of his causes, La Follette gained the heroic stature he still enjoys today. But if filibusters can exalt reputations, they can also lay them low. In 1935, Huey Long, the Kingfish, the demagoguing Senator from Louisiana, filibustered some long-forgotten provisions of the National Recovery Act. His purpose was to advance his own ambitions -- he wanted to tweak Franklin Roosevelt by defeating a bill he held dear. Long read from Victor Hugo, he recited recipes for Louisiana shrimp gumbo, he talked all night, discoursing on the virtues of "potlikker." And he is remembered to day as a bully and a thug, a brutalitarian who put personal interests above the nation's.
Strom Thurmond, another famous filibusterer, suffers the same tarnished reputation. He once spoke continuously for over 24 hours, but today we remember that he did so to defend an odious cause -- segregation, the rancid apartheid of the American South.
We can judge La Follette, Huey Long, Strom Thurmond today precisely because these senators were required to speak. To filibuster, a senator had to express his views on the Senate floor. The American public might rally to the cause if that cause appeared to be just, but the public could just as easily reject it as hostile to good order and government.
Unfortunately, in 1975 Senate rules were amended to allow for the "invisible" or 'painless" filibuster. No longer did senators actually have to speak to maintain their filibuster. The new rules permitted a group of forty-one senators merely to signal their intent to filibuster. The expressed intent alone then sufficed to prevent the target of the filibuster from being moved or considered.
Since Barack Obama's election in 2008, the painless filibuster has come to be systematically abused by Republican senators seeking to frustrate the president's agenda. Indeed, Senator Kirsten Gillibrand has noted that "the filibuster was used more in [the last] two years than it had been in the 1950s, '60s, and '70s combined." (Kirsten Gillibrand, "Needed Reform for the U.S. Senate").
Consider some of the legislation a silent minority of senators has succeeded in killing, not through the use of reason and speech, but through reliance on stealth: The DREAM Act, which would have given permanent residency status to the children of undocumented aliens who have played by the rules and known no other home but America; the Paycheck Fairness Act, which sought to balance wage disparities between men and women in the workplace; the American Jobs Act, which sought much-needed funding for infrastructure reconstruction and renewal, school and classroom improvements, and job training for the long-term unemployed.
Furtively, clandestinely, under cover of darkness, the Republican minority killed these fine pieces of legislation. If Republicans are opposed to integrating children of immigrants into American society, they should be made to stand up and tell us why. If they reject pay equity, they should state their reasons. If they wish to block improvements in our schools and the rebuilding of roads and bridges, they owe us an explanation.
This was our system for most of American history and it is the core value behind the filibuster. But these mute Republicans would rather stand behind a curtain and destroy the delicate balance that has always existed between the majority and minority in the Senate.
Senate Majority Leader Harry Reid appears to be working on filibuster reform designed to end the invisible filibuster and to make senators once again speak. This is nothing less than a restoration of the filibuster to its rightful place in the Senate. The filibuster is the "right of speech," after all, not the right to lurk off-stage and treacherously kill worthy legislation. Make 'em talk, Harry, make 'em talk!