Proponents of the “talking filibuster” quagmire like to point to the success of the Civil Rights Act of 1964 as evidence that important things can be done by breaking a talking filibuster. After all, that was perhaps the most notorious traditional filibuster in history, and it failed. It turns out the Senate website has lots of materials on the Civil Rights Act of 1964. It’s fascinating to read, for example, in the oral history of the secretary for the majority at the time, Francis Valeo, how exactly they broke the Southern filibuster and how — from the outset — the strategy was one of cloture and not exhaustion. In other words, it was a strategy entirely predicated on bipartisan compromise and not on “fighting harder.”
First things first, Senate practices from 60 years ago are not entirely on point. There’s been a lot of procedural and political water under the bridge since then. But insofar as proponents of the talking-filibuster quagmire seem to want to return to that age, it’s worth looking at how it worked.
From the start, the strategy of the Civil Rights Act’s proponents was not to wear out the Southerners and pass the bill at a simple majority because the rules “technically” (or “actually”) allow passage with a simple majority. The strategy was to invoke cloture — at the time a comparatively novel tactic. Valeo explained just how novel it was in the context of a tax filibuster initiated by Wayne Morse early in the Kennedy administration. Valeo said that when cloture was invoked against Morse, everyone was shocked because perhaps only Arizona’s Carl Hayden, the long-serving president pro tempore, had ever seen it done successfully before.
Valeo explained, though, that the same strategy was needed for civil rights. He observed, “Mansfield, and certainly I would have concurred, was persuaded there was only one way in which this issue was going to be won and that was by getting sixty-seven votes, which was what was needed for cloture.”
How were they going to get 67 votes? The only way was to work with the Republican leader, Everett Dirksen. “You couldn’t possibly do it without Dirksen’s cooperation,” per Valeo.
Valeo noted that they could always cobble together a liberal majority at the time: “You had to envision a line of division in the Republican party on any issue, which again in the context of the time would have been called a liberal issue, a significant liberal issue and you could count on six or seven Republicans falling on the Democratic side.” Given the composition of the Senate, with six or seven Republicans, “you could pass a lot of legislation on that basis.” Not, of course, legislation that drew a filibuster.
Getting to the 67 needed for cloture was different. To get that number, Valeo explained, “you were talking then about midwestern, western Republicans, and Dirksen above all, because a lot of people went the way Dirksen went on the Republican side.”
Mansfield and Valeo knew that just waiting out the Southerners wouldn’t work. Georgia Senator Richard Russell was too wily for that. He understood that “to hold up the Senate in that period you didn’t need more than seven or eight members in agreement, and that only had to do with questions of exhaustion, because there was no way that the Senate could pass a measure which seven or eight senators were determined to oppose until their death, if you will — at least legislative death.” In the end, “there was no way in which you could use the rules to beat a determined, small group of opponents.” This is the opposite of how contemporary proponents of the talking-filibuster quagmire assume that exhaustion would theoretically work. If they feel Mansfield got that wrong, they should probably explain why with some degree of specificity.
The word “filibuster” comes from the Dutch word for pirate. This makes sense because there’s a piratical fun to a filibuster. Valeo recounted: “In the previous Civil Rights bill debates that I had watched, the proponents would come out in pajamas for quorum calls and Russell would have them there all night long, while he would be home sleeping. All he needed was two people on the floor and they needed fifty-one.” As Kimberley Strassel noted recently about the current talking-filibuster proposal, “It will give Minority Leader Chuck Schumer the whip hand over the Senate’s time and topics, and the power to extract enormous GOP concessions as a price of passing any bill.” Some things don’t change.
Part of the reason why Mansfield was even able to consider cloture as a strategy was that the taboo against it had weakened. Traditionally, Western senators simply refused to vote for cloture even if they agreed with the underlying bill. Valeo explained their thinking this way: “We’re small states and the cloture rule is designed to protect us as small states, therefore even though I’d love to vote for gun control I just can’t vote for cloture on it; if you can get it to a vote we’ll be glad to vote for it.” Arizona’s Hayden would say that “he had never voted for cloture in his life and he meant not to do that.”
Eventually the Southerners launched their filibuster, and Mansfield was prepared for it. Valeo had watched previous filibusters undertaken by Russell, and so the majority had prepared to counter Russell’s guerrilla tactics from the start. For example, they organized 58 members to work in shifts always holding the floor to show the futility of quorum calls. (With 58 they could relieve half a dozen at any given time, with proper coordination.) They also authorized Hubert Humphrey to ramp up the outside pressure in support of civil rights. (Recall a decent number of the votes they needed were within their own party and supportive of the underlying legislation.)
Perhaps most important, the eye toward cloture was always bipartisan. Per Valeo, “So while the debate was going on on the floor, [negotiations were] going on in the back rooms, mostly in Dirksen’s office, by Mansfield’s insistence.” You see, to prevent segregationist Chairman James Eastland from bottling up the bill in the Judiciary Committee, it was held on the floor and essentially marked up during the debate. Because of that amend-on-the-fly process, the Justice Department sent negotiators “to hold Dirksen, who assured everybody he was for civil rights, but also to help him make adjustments that would enable him to get key people on his side to go along.” In the process Mansfield and Dirksen would identify influential Republicans, such as Iowa’s Bourke Hickenlooper, and satisfy them with minor concessions in the hopes that they’d bring others with them to end debate.
Eventually they did, and Mansfield managed to invoke cloture — with enough cushion that Hayden didn’t even need to bring himself to do it. North Carolina’s Sam Ervin went on to attempt a post-cloture filibuster-by-amendment, but, at that point, with cloture invoked, the game was up. The writing was on the wall: The bill would pass.
In fairness there are a couple of aspects of this to which proponents of the talking filibuster can point favorably. They, too, want to maintain a quorum in fighting trim to forestall dilatory tactics. (Fifty-eight willing senators, though, is very different from 50 or 51, as a practical matter.) They also seek to mobilize public support for their cause. (Of course, civil rights enjoyed overwhelming media support in 1964; with voter ID, it’s the opposite.)
But the most important difference that makes this example entirely inapposite was that the entire strategy was designed around invoking cloture in conjunction with Republican leadership. Insofar as talking-filibuster proponents argue that maybe we can get to 60 on the floor, like Mike Mansfield, they leave out the key element that Dirksen and Mansfield were working together. When it comes to the SAVE America Act, every Democrat is against it, and it’s not because they don’t believe in cloture. Chuck Schumer, far from being an ally of John Thune on this question, is licking his chops at the prospect of dealing Republicans a humiliating defeat.
This is not a reality that can be wished away. Mansfield had an achievable cloture strategy in mind from the start to break the Southern filibuster on civil rights, and he had a ready ally in his Republican counterpart to do so. There is no such strategy for the talking-filibuster quagmire.
Indeed the only credible strategy that’s even conceivable is the same rule-change strategy that Republicans previously derided as nuclear when Chuck Schumer tried it four years ago.