All the Way, the Tony-Award-winning play focusing on Lyndon Johnson’s first year as President, demands a bravura performance by its lead actor. In the staging of this play that I have just seen at St. Louis’ Repertory Theatre, Bryan Dykstra delivers—dominating the stage, just as the real LBJ took command of Congress in his effort to pass some of the most important pieces of legislation of the 20th Century.

The play is not a documentary, as playwright Robert Schenkkan reminds us in his introductory notes. He has taken considerable dramatic license to alter the chronology of some events and to imagine conversations that may never have occurred. But, thanks to the audiotape system in the Oval Office, the playwright did not have to invent everything. From the now-public tapes, we know that Johnson used his Oval Office telephone as a communications weapon, calling everyone, at all hours, to wheedle, cajole, pressure, arm-twist, bully and horse-trade—often using barnyard language and coarse analogies that redefined “presidential.”

Some conversations in the play may be edited versions of the tapes, and some may be entirely fictional, but the basic facts are correct: Lyndon Johnson, self-described in the play as an accidental President, seized his moment, using the power of the Oval Office and his prodigious political skill to pass the 1965 Civil Rights Act and the 1965 Voting Rights Act.

And in the early days of his Presidency—the time period covered by All the Way—it worked. Johnson had honed his bargaining skills during 24 years in as a U.S. Congressman and Senator, and as the political protégé of the powerful Senator Richard Russell of Georgia, who is a featured presence in the play.

When watching political dramas, it’s tempting to see the connections to current events and then to conclude that nothing ever changes. In this case, though, one of the lessons learned is that things actually have changed—but not necessarily for the better.

As he made civil rights legislation his top priority, Johnson used everything he had to get his way. What’s different here is that horse-trading worked—or perhaps more fundamentally, that political horse-trading was even possible. Johnson wheeled-and-dealed both with Republicans and with members of his own Democratic party—particularly those from Southern states, who opposed civil rights legislation that would alter their traditional “way of life.” But at least they were willing to talk and deal. We haven’t seen much of that in recent years.

In the end, Johnson won the battle—managing to get the Civil Rights and Voting Rights acts passed—but he lost the war. “We just lost the South,” Johnson said. And he was right: After 1965, Southern Democrats began to see themselves as alienated from the Democratic party, and eventually, their once-Democratic states went Republican. [An appropriate realignment, many would say.]

One of Johnson’s lesser-known achievements not mentioned in the play is the Immigration Act of 1965.  [I’m not faulting the playwright for this omission: It’s a play, not a historical document, after all.] But given today’s anti-immigrant climate in Congress, that piece of game-changing legislation is worth noting. Before it, U.S. immigration policy was decidedly ethnocentric, giving almost unlimited access to immigrants from white, Anglo-Saxon and European backgrounds, while imposing strict quotas on people from Asia, Central and South America, Africa and the Middle East. The 1965 act—signed by Johnson with the Statue of Liberty as backdrop—removed the quotas and leveled the playing field. Passed as what was seen as an extension of America’s new-found spirit of civil rights, the law still stands as the framework for present-day immigration policies. Sadly, it’s very hard to imagine such a welcoming, open-arms bill getting through Congress today–even if it had behind it the kind of politically driven, strong-arm, force-of-nature president we see in Lyndon Johnson in All the Way.

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As a number of pundits, such as John Nichols of The Nation are saying, we need to reform the filibuster system in the U.S. Senate. The idea advocated by Nichols and many others is to adopt the strategy used by Jimmy Stewart (lead character in “Mr. Smith Goes to Washington”) and require senators to actually stand at their desks and speak. In recent years, all that senators have had to do is to state that they want to engage in a filibuster and a bill cannot be voted upon until there are 60 votes available to end the filibuster.

In the current make-up of Congress, Democrats (along with Independents) have only 53 votes. In the coming Congress they will have 55. Since Republicans are recalcitrant about remaining unified, regardless of the merits of almost any bill, virtually no filibusters are stopped. The Republicans have to do no more than say they are filibustering a bill and they get all the benefits of doing so. If the Democrats become the minority, it is reasonable to expect that they would do the same thing under the present rules.

Nichols says:

Historically, the filibuster existed as a protection against the silencing of the minority. Under the rules of the Senate, a member or group of members who did not have the votes to prevent approval of a piece of legislation could demand to be heard in opposition. Ideally, the traditional theory went, this avenue of dissent could prevent a rush to judgment.

But, in recent years, the filibuster has not been used to raise voices of dissent. Instead, it has been used to block votes on critical pieces of legislation, to make it harder for the president to advance even the most popular proposals and to undermine the basic premises of the principle of advice and consent.

Although the Democrats and Independents had 59 votes in the Senate from 2009-2010, they were generally unable to stop filibusters because (a) the obvious reason : 59 is one short of 60, and (b) some Democrats, such as Ben Nelson of Nebraska, often voted with the Republicans.

Senate, meet NFL

Adopting the “Jimmy Stewart Rule” seems to be an improved way to limit the damage that the filibuster does to the will of the majority. But borrowing a procedure from the National Football League might be far superior.

The NFL has a rule stating that the coach of each team is able to throw a red flag on the field twice a game. The red flag indicates that he wants to challenge the referee’s ruling on the field. The coaches have to be judicious about throwing the red flags, because if their appeal does not result in the decision being overturned, the coach’s team loses a time out, which can be crucial to managing the clock.

The key is that there is a limited to the number of challenges each team can have per game.

How it would work

Suppose that this was applied the number of  filibusters the minority party could use in a session of Congress.

When Lyndon Johnson was Senate Majority Leader in the 1950s, Republicans engaged in only one filibuster. That’s right, one. Over the past six years, in which Harry Reid (D-NV) has been majority leader, Republicans have engaged in 386 filibusters. These filibusters are the primary reason why Congress has been in a state of gridlock ever since Barack Obama became president.

Suppose that the minority party was limited to ten filibusters (and “a hold,” – a topic for a future post) per year. The minority party would have to be extremely judicious about how they used their filibusters. Currently, they can use a filibuster for a wide expanse of legislation, ranging from the confirmation of judges or cabinet to funding an overseas military engagement. Frequently, Republicans have used the filibuster to stop important social welfare programs, such as food stamps, or extending unemployment benefits. In fact, they have often used it to block any effort to reach a budget accord aimed at reducing the national deficit through increased taxes and cuts in government expenditures.

Indeed, the filibuster is important to protect the rights of the minority party. Many of the issues that face the Congress are designed to protect minorities, whether they are in the field of civil and human rights, workers’ rights, women’s rights, LGBT rights, or other social issues. The Senate is often referred to as the deliberative house of Congress. It needs to remain that way. However, being deliberate is not the same as causing gridlock. With Democrats currently in the majority in the Senate, now is the time to reform the filibuster system. Senate rules allow one day, the first day of the new session in January, for changes to the rules. Maybe members of the Senate should spend their holidays watching NFL games so that they see the wisdom of putting limitations on the number of challenges.

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