Published 4/6/2005

If, like me, you hate sequels, stay away from the Senate floor this month. Senate Majority Leader Bill Frist, R-Tenn., may soon try to change one of the longest congressional traditions in the nation’s history — the 200-year-old right to filibuster. However, unlike the original movie, Mr. Smith Goes to Washington, this modern sequel has the makings of neither good viewing nor good politics.
For many Americans, Frank Capra’s 1939 classic work was their first introduction to the filibuster and contains perhaps the quintessential American film scene. Standing alone on the floor of the U.S. Senate, young Sen. Jefferson Smith refuses to yield to the corrupt plans of his powerful colleagues. Against all odds, he invokes the filibuster — the right of a single person to hold the floor against the world — as long as he can continue to stand and to speak.

Where the filibuster was portrayed in the film as “democracy’s finest show … the American privilege of free speech in its most dramatic form,” the sequel takes a more sinister view of the rule as a form of “tyranny of the minority.”

Ostensibly, Republicans will seek to kill the filibuster in the name of a handful of controversial judicial nominees blocked by the Democrats. However, the real motivation is the much-anticipated fight over Supreme Court nominations — with as many as two or three expected this term. Indeed, President Bush places such importance on the court as his true legacy that he appears willing to jeopardize much of his legislative agenda to secure it. Not only could Democrats use the filibuster rule to block ultra-conservative nominees, they could block a vote on vacancies occurring near the end of Bush’s second term.

Like Smith, Frist is the descendant of a proud family line in his largely rural state of Tennessee. Frist even looks vaguely like the lean, erstwhile Scout leader played by Jimmy Stewart. And just as Smith was offering legislation to protect his “Boy Ranger” Scouts, Frist has introduced his own pro-Scout legislation in the midst of the filibuster fight. Same characters, same issues, but a decidedly different outcome. “Mr. Frist Goes to Washington” is a lesson in realpolitik. Where Smith was the naïve voice of the idealist, Frist is the determined voice of the ideologue.

Purposely long-winded

Actual filibuster speeches are rarely profound. In the 1930s, Louisiana Sen. Huey Long used to pass the time by detailing the proper way to make fried oysters.

The old rule allowed a member to control the Senate floor for as long as his voice and bladder held out. In 1957, the late Strom Thurmond filibustered the Civil Rights Act for 24 hours and 18 minutes until doctors advised him of imminent kidney failure. Not only was this a record, but Thurmond beat Smith, who collapsed after 23 hours and 16 minutes.

Under the modern rules, it is no longer possible to stand alone against the world. Sixty senators can bring “cloture” to end a filibuster. (The Republicans have only 55 members). Frist is proposing that Vice President Cheney, as presiding officer, should simply rule any filibuster as “out of order.” Frist needs only 50 Republican senators to defeat any Democratic challenge to such a ruling. It is called the “nuclear option” to capture its menacing implications for Democrats and the apocalyptic political scene that it would leave behind.

Of course, only Claude Rains (who played Smith’s nemesis, Sen. Joseph Harrison Paine) could do justice to the current claims of Republicans that they are “shocked, shocked” by the blocking of judicial nominees. In President Clinton’s second term, the Republicans confirmed 35 out of 51 nominations to the appellate courts. In Bush’s first term, 35 out of 52 have been confirmed. Republicans routinely killed nominations in committee rather than the floor, but there was no practical difference in the result.

In fairness to Frist, he is right on the law. The filibuster rule has always existed at the pleasure of the Senate, which sets its own rules under the Constitution. Thus, Democratic threats of a legal challenge are less than convincing. Moreover, the filibuster rule is unabashedly and undeniably anti-democratic, as Frist has argued.

However, there was always more to the filibuster rule than a really good movie. The rule, in many ways, protects the majority from itself. When 40% of the Senate opposes a nomination, there is generally good reason for a president to rethink a lifetime appointment.

Endangering a legacy

Though the nuclear option may secure a Bush legacy on the court, it may also guarantee that it will be his only lasting legacy.

Democrats recently promised to wage a virtual war if their right of filibuster is taken away — slowing the Senate to a crawl through quorum calls and other tactics. For moderate Republicans, the loss of the rule would also eliminate the last excuse in resisting more extreme nominees. That would likely force some moderates to break with the pro-life base while also risking a backlash against the GOP among women if Roe v. Wade is endangered. Indeed, at least seven Republican senators are quietly resisting Frist’s effort to “go nuclear.”

Finally, the filibuster is the last of a series of rules that protected minority interests in the Senate. Once gone, the Senate would likely become less deliberative, less collegial and ultimately less influential.

Of course, it was Mr. Smith who insisted in his filibuster, “Either I’m dead right or I’m crazy.” In his modern sequel, Mr. Frist is about to show that you can be both.