Everything You Ever Wanted to Know about the Filibuster

You will read a lot over the next few weeks about how the filibuster is an essential part of our checks and balances installed by the founders to protect us from the mob. That Republicans have unilaterally undermined that protection. This is baloney. (My primary source is: http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf )
  1. The filibuster allows a minority party in the senate to undermine progress through “dilatory” debate: debate only for the purpose of delay, rather than persuasion.
  2. It was not designed by the founders. It was not created to protect minorities. It was not instituted by careful legislative procedure to serve a higher purpose.
  3. It was an accident.
  4. How did we get to where we are today, where a minority party can significantly derail the entire legislative agenda of the majority, even when the majority controls the house, the senate, and the presidency?
    Sit back and I will tell you…
  5. The Constitution is deliberately open-ended about congressional procedure. It is covered in Article I Section 5, and this is the relevant clause:
    “Each House may determine the Rules of its Proceedings”
  6. The House and the Senate themselves are Constitutionally empowered to decide how, exactly, they will operate individually.
  7. The Constitution says nothing about “cloture”, “filibuster”, or even motions, debates, and voting procedures.
  8. Something called “parliamentary procedure” was well understood at the time, and the houses of Congress, in the absence of other rules, operate under this procedure. Which means, among other things, “majority rules.”
  9. We can safely assume this because when the constitution *does* care about super-majorities, it is always explicit. For example:
  10. On expelling a member for bad behavior:
    “Each House may…with the Concurrence of two-thirds, expel a Member.”
  11. On overriding a presidential veto:
    “shall be repassed by two thirds of the Senate and House of Representatives”
  12. On impeachment and conviction of a federal officer:
    “no Person shall be convicted without the Concurrence of two thirds of the Members present”
  13. Except in the six cases where the constitution explicitly requires a super-majority in congress, a simple majority is assumed.
    For example, as you know, it requires a simple majority in each house to pass a law (which the president may veto).
  14. When the first Senate convened in 1787, one of the first orders of business was to establish the “Rules of its Proceedings” as authorized by the constitution.
  15. After some debate, the Senate settled on 20 rules, most of which are very dry and boring. One was the “previous question” rule:
    “The previous question being moved and seconded, the question for the chair shall be: ’Shall the main question now be put?’ and if the nays prevail, the main question shall not then be put.”
  16. It allowed any Senator to make a motion for “the previous question” meaning they suggest debate be ended and the original question under debate be considered.
    Unless a simple majority of Senators disagreed (“if the nays prevail”), debate would end.
  17. Ultimately these rules are interpreted and enforced by the president of the Senate.
    (An office filled by the Vice President of the United States.)
  18. In 1806, then Vice President Aaron Burr suggested that some of the rules were unnecessary. In particular he pointed out that the “previous question” rule had only been used one time in the prior four years.
    Obviously, he argued, the rule wasn’t really necessary.
  19. The rule was removed, and as an oversight, the Senate failed to implement any new rule to terminate debate.
  20. At that moment it became theoretically possible for one Senator to perpetuate debate for as long as he or she had the stamina, blocking all Senate progress in the process.
    (The racist Strom Thurmond famously demonstrated this when he spoke for 24 hours and 18 minutes straight to block the Civil Rights act.)
  21. But we know Burr was not arguing for this power. Filibusters didn’t really enter anybody’s mind at the time.
    The idea of using “dilatory” tactics to delay procedure was considered undignified. As Senator Clifford Case explained, “the body observed dignity and restraint in debate, and did not consider talking to consume time a parliamentary instrument appropriate for the Senate”
  22. And this is supported by this simple fact:
    It never once happened for more than 30 years. Not until 1837 did the first Senator filibuster, when a small group of Senators loyal to Andrew Jackson blocked all action in the Senate until the censure of Jackson was removed from the Senate record.
  23. Other minority groups in the Senate obviously took notice. By 1841, the Senate realized it had a problem. It began trying to undo the filibuster.
  24. Senate heavyweights like Henry Clay argued forcefully for the “previous question” rule to be reinstated, restoring majority control of the Senate.
  25. But the existence of the filibuster itself made the rule change difficult. A small minority of Senators could bring all business in the Senate to a halt rather than allow the the rule change to be voted on.
  26. The Senate was stymied by the filibuster for 75 more years, as the practice grew and grew.
  27. Finally the dam broke in 1917. President Woodrow Wilson, responding to legitimate threats from Axis powers, proposed a bill allowing the arming of American merchant ships to defend themselves from attack.
    The bill was supported by the President, the House, the Senate, and the American people.
  28. But 11 pacifist members of the Senate filibustered, effectively blocking passage of the bill.
    (They believed — correctly — that it was a small step toward American involvement in World War I.)
  29. This caused something of an outrage.
  30. Wilson was mad.
    (Although he got what he wanted anyway by executive order).
  31. The Senate leadership was mad.
  32. And American voters were mad.
  33. This produced the right political environment to finally reform the senate rules.
  34. But how to do it?
    Spoiler: In politics, where there's political will, there's a way.
  35. This, 1917, is when what we now call the “nuclear option” first came into play. At the time it was called the “constitutional option”.
    (It is probably more correct to say the Nuclear Option is the application of the Constitutional Option to force cloture with a simple majority vote, but they are closely related.)
  36. Several Senators including the venerable Henry Cabot Lodge and Thomas Walsh suggested that this situation was unconstitutional.
  37. Remember the Constitution says simply:
    “Each House may determine the Rules of its Proceedings”
  38. And it is understood that such determinations are by simple majority. As Senator Walsh eloquently put it:
    “A majority may adopt the rules, in the first place. It is preposterous to assert that they may deny future majorities the right to change them.”
  39. Legally, he argued, a Senate in session in 1806 had passed, by simple majority, a rule change which now prevented a simple majority from changing the rules. But the Constitution clearly indicates that the majority in the Senate makes the rules.
  40. His argument was more complex than this, but this is the gist:
    The Senate acting alone cannot amend or overrule the Constitution. So a past Senate majority cannot deny future Senate majorities their Constitutionally guaranteed rights.
  41. Critical to this maneuver was the idea that the rules were not yet in play. Otherwise, even considering his interpretation would be open to debate and filibuster.
  42. Walsh argued that the Senate is not a continuous body. Rather, in each term, a new Senate convenes. At that moment, it has no established rules.
    And so it is operating under those well-understood parliamentary rules.
  43. For the prior 111 years, each new Senate had de facto adopted the prior Senate’s rules, but, he argued, they are under no obligation to do so forever.
  44. This is not as radical as it sounds. The House, for instance, has operated this way since 1860. Every time a new term of the House of Representatives convenes, their first order of business is to write their rules for the session.
    (Which usually involves adopting the old rules.)
  45. This produced a long-running legal debate about the nature of the Senate.
  46. Is the Senate a continuous body, operating from 1787 to the present?
  47. Or have we had 115 Senates, each convened for a term?
  48. This argument is delicious...
  49. In the House, every member is re-elected and sworn in every term.
    So it is reasonable to call it a new legislative body each term.
  50. But in the Senate, only 1/3rd of its members are re-elected every term.
    The other 2/3rds still have two or four years left on their six year terms.
  51. Walsh’s opponents argued that this difference made the Senate one continuous body.
  52. While of course the members had completely changed many times over since 1787, just like the Ship of Theseus, the Senate itself remained whole and original.
    https://en.m.wikipedia.org/wiki/Ship_of_Theseus (See also George Washington's Axe.)
  53. This argument is still not fully resolved. The Senate has argued this (as part of its Constitutional Option debates) for 100 years, and has always avoided declaring itself one way or the other.
  54. In 1917 a compromise was reached. The Constitutional Option was not invoked, but the Senate agreed without filibuster to its first “cloture” rule, the famous Rule XXII.
  55. At the time, this rule allowed a 2/3rds majority of *present* Senators to force the end of debate.
  56. Walsh wanted simple majority.
  57. The minority members wanted the status quo.
    But facing the threat of the Constitutional Option they compromised.
  58. For the next 100 years, this rule, the Constitutional Option, and the idea of cloture would be revisited dozens of times.
  59. Over and over again, minorities in the Senate would use the filibuster dramatically to block popular civil rights reforms that were repugnant to their small constituencies, mostly in the south.
  60. Time and time again the Senate majority would grow weary of this obstructionism and try to undermine the filibuster.
  61. Time and time again, minority parties would try to bolster the filibuster.
  62. In 1949 rule XXII changed from 2/3rds of present senators, to 2/3rds of *all* Senators making filibusters a little harder to break.
  63. In 1957 it changed back.
  64. All along, certain Senators used the threat of the Constitutional Option to encourage compromise.
    “If you won’t cooperate, please note that we can just go around you if we really want to. It is our Constitutional right.”
  65. Tensions grew as the progressive agendas of the 1960s and 70s were continually undermined by Senate minorities.
  66. Liberals wanted one thing: To weaken the filibuster by requiring 3/5ths vote for cloture instead of 2/3rds. But they were thwarted repeatedly.
    It can be argued that over the long run the filibuster primarily benefits conservatives because by definition is obstructs progress.
  67. “By 1975, the liberal bloc had devoted twenty-two years and multiple failed attempts to three-fifths cloture reform.“
  68. But in 1975 the landscape changed significantly because of yet another rule change.
  69. The Senate in 1975 adopted a “two track” process for legislation.
  70. The goal of this change was to reduce the negative impact of filibuster on the Senate itself.
    Instead of considering only one legislation at a time, the Senate could consider two.
  71. In practice, one bill could be actively being filibustered while a pipeline of other bills sailed through.
  72. Prior to this rule, when a minority party decided to filibuster, they really mucked up everything. The entire Senate came to a standstill.
  73. The Senate could break the filibuster if it had the votes. Or it could accomplish nothing. Or it could give in to the filibuster and table the opposed question.
  74. This was increasingly disruptive to the Senate as a whole, so they introduced the two track system with the best intentions.
  75. Unfortunately, this had two problematic consequences:
  76. 1. It made filibuster less politically costly. A minority party could filibuster one bill without blocking a popular agenda and incurring the wrath of the People.
  77. 2. It made filibuster easier. Now you really only had to say “I’m gonna filibuster”. The Senate would move to track two and you didn’t actually have to go all Mr. Smith Goes to Washington on the bill.
  78. The practical result of this rule change was about a 3x increase in use of the filibuster.
  79. It became clear that passing any legislation required a 2/3rds majority of the Senate rather than the simple majority the Constitution intended.
  80. This provided enough impetus for the Senate to finally get over its fear of the Constitutional Option.
  81. In 1975, on three occasions throughout months of complex procedural wrangling, the Senate president affirmed the Constitutional Option.
  82. The Senate had the power, by simple majority, to rewrite its own rules.
    (Aside: This kind of ruling forms a binding precedent in the Senate. A precedent that still stands today.)
  83. But the majority in the Senate didn’t do away with the filibuster entirely. Rather than re-institute the previous question rule, they simply tightened the requirements for filibuster a little bit.
    Instead of a 2/3rds majority for cloture, rule XXII now requires a 3/5ths majority.
  84. There were other procedural fights in the Senate in the following years, primarily limiting use of the filibuster in certain scenarios.
    But in general the rule stood.
  85. But by 2000 we had a nation narrowly divided along party lines. The Senate became closely divided.
    We had a contested presidential race in Bush v Gore, and a lot of opposition to the president’s agenda by the Democrats.
  86. When the Democrats lost control of the Senate, they began to use the filibuster more aggressively to obstruct the Republican agenda.
  87. This was taken to even greater extremes during the Obama presidency.
  88. The majority leader in the Senate famously said his number one priority was to “make Obama a one term president.”
    Not to advance a conservative agenda. Not to reign in the president’s liberal agenda. Not to find acceptable compromises. Not to refuse to yield on matters of principle. But simply to undermine Obama’s popularity by making him appear ineffective so he wouldn’t be reelected.
  89. And thus we entered the modern era of the filibuster, where the minority party blocks all legislation and appointments as a matter of principle.
  90. Remember when in 1806 dilatory procedures were considered undignified? Beneath the dignity of the esteemed Senate?
    We’ve come a long way baby.
  91. The Democrats put a nail in the filibuster coffin by revising the rules to allow simple majority cloture for judicial nominations other than for the Supreme Court.
    The Republicans cried foul.
  92. Now the Democrats are the slim minority in the Senate and they have adopted the same filibuster practice.
    And this week the Senate put one more nail in the coffin. Now the filibuster can’t be used against Supreme Court nominees either.
  93. You’ll read a lot this week about how this is a huge step. How it is a violation of the founding principles. How it is unprecedented.
  94. All of that is wrong.
  95. The filibuster was an accident.
    You can argue that it serves an important purpose. But I would argue that it has only undermined the Senate recently. And even historically, the big filibusters have so often been in opposition to good legislation. (None of this is to say that the Merick Garland nomination situation wasn’t a problem. I’m separating Garland’s nomination from my opposition to the filibuster in general.)
  96. We still have the filibuster for legislation. I’m not sure how much longer it will last.
  97. But when it falls, and you read about how it has destroyed the storied dignity of the senate…
    Remember the history.
  98. .
    (I'm not a historian. Just a person who likes history. Corrections welcome!)