Did you ever see the movie Mr. Smith Goes to Washington? In this 1939 Frank Capa movie, a naive Jefferson Smith, played by Jimmy Stewart, is appointed to the Senate when one of his state's sitting Senators passes away. When he gets to the Senate, Mr. Smith is persuaded to intitate some harmless legislation, creation of a campground for boys, as a way to keep him out of the way and out of trouble. It seems the powers that be in his state are pushing a corrupt pork barrel project to build a dam. Unknowingly, Mr. Smith proposes to locate his campground right in the path of the water project.
This sets off a chain of events in which the corruption is uncovered, but the villains manage to blame it on the unsuspecting Mr. Smith who finds himself about to be expelled from the Senate in disgrace. With the help of his beautiful and savvy assistant, Clarissa Saunders, played by Jean Arthur, Smith refuses to go quietly.
The thrilling climax to this quintessential Capra feel good movie begins when Jefferson Smith launches a one man filibuster in an effort to clear his name and identify the real culprits. His strategy is to catch the Senate by surprise with a request that he be given the floor to speak, then to refuse to yield the floor. In order to keep the filibuster going he has to keep talking.
After seven and one-half hours into the filibuster, one of the Senators proposes a motion to call for a recess until the morning. In a three-way routine between the rostrum (the President), the gallery (Saunders), and the floor (Smith), the twinkle-eyed President slyly looks up at Smith's coach in the gallery. Saunders, who knows the political ropes of Washington, signals for the uncomprehending Smith to not accept the motion. She gestures and points down toward the President, suggesting: "Ask him." The tolerant, amused President hides a smile of tacit approval for her coaching, and then explains how Smith would lose control of the floor if he accepted the motion for recess.
At a moment of crisis, Senator Smith is cheered and buoyed up after receiving a note taken to him on the floor by a young page. The note is from Saunders in the gallery with the acknowledgement of a long-distance courtship in the postscript:
You're wonderful. Press boys all with you - Read them Constitution next very slow.
Diz says I'm in love with you.
(He moves his thumb away to uncover the final few words)
For 23 hours he holds the floor. Finally, disheveled and hoarse he collapses, but surprisingly, he also wins out. His state's senior Senator Paine, inspired by Smith's integrity and perserverance, finds his conscience, admits to being part of the corrupt scheme, and clears him of the corruption charges.
That was a filibuster. It was an attempt to win over support for a minority position, or create such an impasse that the matter would have to be dropped. It required that a member or group of members hold up all Senate business by taking the floor and refusing to yield. When exhaustion set in and the filibuster came to an end, the Senate would resume business under majority rule, and if support had been won over the filibuster would be considered a success. In the meantime all other Senate business was at a halt.
Rules have changed over the years. Now the filibuster has been made unnecessary. Senators no longer have to go through the ordeal. Refusal to begin the debate is what now passes as a filibuster. Other Senate business is allowed to go forward. There is no long tradition of this in Senate. It's a very recent development. No muss, no fuss. Life is good in the minority.
The Senate's cloture rule, Rule XXII, was not created to foist a supermajority-vote rule into a body whose limited supermajority-vote requirements already are detailed in the Constitution. Rather, Rule XXII was created to strike a balance between a tyranny of the majority and a tyranny of the minority. It prevented outright minority obstructionism while avoiding, to borrow the words of John C. Calhoun, "an attempt to rule the Senate by the despotism of the gag."
In the furor over judicial nominees, Democrats have turned the cloture rule on its head. They are not an oppressed minority demanding the right to be heard. Quite the opposite: they don't want to discuss the judges at all anymore. To Sen. Tom Daschle and others, extended debate on the subject has been "a colossal waste of time."
Thus, Democrats have enjoyed the protection of Rule XXII while flouting such protection's purpose. If the bipartisan Senator majority ready to confirm the judges really wants to prevent the minority from exerting an effective veto in this matter, they must force the Democrats to accept the full weight of Rule XXII. Sen. Frist must clear the Senate calendar and start the debate. If Democrats want the filibuster's protections, it's time to make them filibuster. Not for a fixed four hours. Not for a fixed forty hours. Make them filibuster until they concede and vote or until Republicans are ready to concede the issue permanently and release nominees from their current limbo.
In earlier posts I've voiced the sentiment that Bill Frist should exercise the "nuclear option" to force a vote. I've reconsidered that position. What I'd really like is to bring back the real filibuster, instead. Let the Democrats have their filibuster, but make them go the distance. What could be more entertaining than to watch them drone on without end about the judges waiting to be confirmed? Let's stop everything and give the Democrats their opportunity to make the case to the American public that Janice Brown is a threat who must be stopped at all costs.