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The word "filibuster" comes from a Spanish word for "pirate," and that is exactly what the filibuster does; it hijacks the democratic process.



Senate Math — 41 Is Greater Than 59!
By U.S. Senator Zell Miller
(As appeared in The Wall Street Journal)

A portly British statesman once famously said that "Democracy is based on reason and fair play." But there's nothing reasonable or fair about what's been happening in the Senate recently. The filibuster against Bush-nominee Miguel Estrada is not just an expensive waste of time and taxpayer money, it's also an affront to majority rule, the principle that Democracy operates on everywhere.

Everywhere, that is, but the Senate.

The Senate is the only place I know where 59 votes out of 100 cannot pass anything because 41 votes out of 100 can defeat it. Last week, of course, 55 senators — a clear majority — voted to end a filibuster against Mr. Estrada and still lost the day. Try explaining that at your local Rotary Club or to a constituent in the Wal-Mart parking lot or, for that matter, to the college freshman in Poly Sci 101. You can't because it stands democracy on its head.

The word "filibuster" comes from a Spanish word for "pirate," and that is exactly what the filibuster does; it hijacks the democratic process. The way it is being used in the Senate gives the minority an absolute veto on everything.

James Madison, the Father of the Constitution, feared some future political leaders would pervert the legislative process in just this way. And he warned in Federalist Paper Number 58 that when it happened, "The fundamental principle of free government would be reversed. It would be no longer the majority that would rule. The power would be transformed to the minority." I'm sure Madison is today spinning in his grave.

Some constitutional lawyers have argued that any kind of super majority vote is unconstitutional, other than for those five areas specified in the Constitution itself: treaty ratification, impeachment, override of a presidential veto, constitutional amendments, and expelling a member of Congress.

Perhaps it is time for someone to test its constitutionality. That's one possible remedy. There are others. We could abolish Rule XXII that protects this travesty and let the Senate operate under rules like every other democratic legislative body in the world. That's about as likely as a day dawning in Washington without 10 fund-raisers.

Or we could modify what I call the Two-Track Trick, installed a few years ago, which allows a "filibuster-lite" to proceed without any heavy lifting while another piece of legislation is being considered at the same time. With this devious device the Senate avoids the inconvenience and pain of a real filibuster. Powder puff, 16-ounce gloves are used instead of bare knuckles, but it still can go on and on ad nauseam. It's just that the public doesn't notice it as much. And that's the point — public debate is turned down real low.

Over the years, many respected veterans of the Senate, not a newcomer like myself, have expressed dismay with the process. Henry Clay did before the Civil War and the process then was nothing like it would become late in the 20th century. Barry Goldwater and even the loquacious Hubert Humphrey expressed misgivings from time to time.

In the mid-1990s, there was a bipartisan group of distinguished citizens called "Action, Not Gridlock" who came together with great ballyhoo, intent on reforming Senate rules. They had the shelf-life of a ripe banana. And in 1995, Democratic Sens. Tom Harkin and Joe Lieberman introduced a rule change that I believe is the best that's been proposed. It still kept 60 votes on the initial cloture vote, but decreased it by three votes with each of the next three cloture attempts until finally it got down to the majority of 51. They argued, logically I believe, that this would preserve the Senate tradition while still giving the minority plenty of time to plead its case without blocking the majority forever.

All of this came to naught, however, after the Republicans solidly opposed it and Sen. Robert Byrd enlightened his fellow Democratic senators with the story of how Cato II, in 60 B.C., got the floor in the Roman Senate at midday and spoke until sundown, the time of adjournment, in order to thwart one of Julius Caesar's proposals. And that was the end of the Harkin-Lieberman filibuster reform bill.

Never mind that Caesar was not thwarted and 14 years later, in 46 B.C., Cato committed suicide while Caesar was at the height of his power and still going strong. Perhaps it is worth noting that the First Filibusterer in history ended up taking his own life. He made his point — as senators love to do — but ended up killing himself. Now that, my filibustering friends, is a history lesson worth pondering.

Mr. Miller is a Democratic senator from Georgia. This article originally appeared in the March 10, 2003 edition of The Wall Street Journal.

[Posted March 12, 2003]