Defending the Filibuster, Revised and Updated Edition: The Soul of the Senate

Preface

Pr eface This house is a sanctuary; a citadel of law, of order, and of liberty; it is here—it is here in this exalted refuge—here, if anywhere, will be resistance made to the storms of political frenzy and the silent arts of corruption. And if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor. —Vice President Aaron Burr, Farewell to the Senate, March 2, 1805 We had met on several prior occasions, beginning in the 1970s. Bob Dove began in the Senate as an assistant parliamentarian in 1965. He would go on to become the Senate parliamentarian in 1981. Rich Arenberg came to Capitol Hill with Paul Tsongas, who was part of the new class of “Watergate babies” elected to the House of Representatives in 1974. Four years later, Tsongas upset an incumbent senator and Arenberg moved with him to the Senate. As parliamentary advice was required from time to time to prepare Senator Tsongas for deliberations on the Senate floor, including the epic battle over the Alaska lands issue , Arenberg would seek out Dove. But it was in April of 1982 that our friendship was forged. The scene was Ocean City, Maryland. The Congressional Research Service was conducting its Graduate Institute for Legislative Staff, known as the “CRS Congress.” Bob Dove, then the Senate parliamentarian , was asked to play the role of the vice president of the United States, xiv · Preface the presiding officer of the Senate. CRS asked Rich Arenberg, Senator Tsongas’s legislative director, to play the role of the Senate majority leader. As the mock Congress deliberated, we, building on our shared love of the U.S. Senate and the adrenaline of parliamentary maneuver under fire, playfully attempted to stump each other, exploring the most arcane parliamentary situations we could muster up. Arenberg, imitating the real majority leader, Senator Robert Byrd, even delivered a long speech onSenatehistoryinvokingthelessonsof ancientRome.Byrdwasinthe midst of such long lectures on the Senate floor, which later became his famous book on Senate history. At the conclusion, Arenberg, to honor Dove for his good humor and skill in presiding, led the CRS Senate in adopting a resolution pursuant to a standing order in the U.S. Senate which provides for marble busts of Vice Presidents to be placed in the nichesintheSenategallery.SenttothepodiumwiththeArenbergresolution was a little yellow rubber duck with the label “VP” emblazoned on its chest. Over the years, we continued to work together on many occasions. Arenberg, while working for Senator Tsongas, Majority Leader George Mitchell, and Senator Carl Levin, sought the advice of Dove on numerous parliamentary matters. In recent years, we have lectured in each others’ classrooms at Brown University and George Washington University . In November of 2009, we came together to begin writing Defending the Filibuster. We wrote this book for many audiences. At one level, we wrote this book for ourselves. We are two longtime Senate staffers who love the institution, its critical role in American democracy, and its unique history. We share the conviction that the existing view of the Senate and its rules, particularly the filibuster, is negative in the eyes of much of the public, popular media, and academia. Inevitably, those who have not served Burr’s “exalted refuge,” Madison’s “great anchor” of the government, fail to adequately take into account the impacts of the filibuster on the unique characteristics of the Senate. These include discouraging unchecked majority control, fostering deliberation and compromise, moderating extreme outcomes and avoiding precipi- Preface · xv tous decision making, protecting the rights of minorities, discouraging more populated states from dominating the congressional process, ensuring the role of the legislative branch in oversight of the executive branch, and assuring the role of the Senate as a check and balance of the majoritarian House of Representatives in the legislative process. At the basiclevel,wewantedtoexplorethehistoryandlayoutouranalysisand advocate for our view. We also wrote this book for the senators themselves and the staffs that serve them. We hope that our long experience and insight into the workings of the Senate might convince those intent on radically changing the Senate’s character to reevaluate. And, we seek to reinforce the convictionof thosewhoseektodefendtheSenate’shistoricrole,including the rights of senators to debate and amend. We hope this book will be of use to the federal employees, contractors , lobbyists, and other advocates who together...