That Venerable Senate Tradition – The Filibuster

If you have ever watched Mr. Smith Goes to Washington, starring a young Jimmy Stewart, then you may think that you know what a filibuster is. You don’t. You may know what it used to be, but you probably do not know what it is today. In the movie, Smith (Stewart) was trying to stop a bad piece of legislation, and he couldn’t muster the necessary fifty-one votes to defeat it, so he thought he was licked. Now, Smith was new to the Senate and was also young and somewhat politically naive. He wasn’t, therefore, familiar with the Senate’s ways and rules, and he didn’t know about the filibuster. When someone told him about it, he knew immediately that it was what he had to do.

What is the Filibuster?

Originally, it was a Senate rule quirk such that, once a Senator was granted “the floor”, or, in other words, the opportunity to speak, then he could hold it as long as he continued to stand and to speak. All business of the Senate was brought to a halt until the “filibuster” ended, either by the physical inability of the filibusterer to continue, or by the withdrawal of the offending legislation. If the Senator had supporters willing to be co-filibusterers, then they could pass the floor, or right to speak, among themselves almost indefinitely. Old time filibusters sometimes lasted for weeks. Under the old rules, the Senate had to stay in session 24-7 until the matter was resolved.

YouTube clip from Mr. Smith Goes to Washington – the beginning of the filibuster:

 

YouTube clip from Mr. Smith Goes to Washington – the end of the filibuster:

https://www.youtube.com/watch?v=zWyEc7FAMTg

 

The Origin of the Filibuster

First of all, it is a myth that “… the filibuster was part of the founding fathers’ constitutional vision for the Senate: It is said that the upper chamber was designed to be a slow-moving, deliberative body that cherished minority rights. In this version of history, the filibuster was a critical part of the framers’ Senate.”[1]

If the Founders didn’t provide for the filibuster in the Constitution, then how did it come about? Anyone who has had any experience in parliamentary procedure has perhaps encountered a situation wherein someone attempted to end debate upon an issue by making a motion to “call the question”, requiring that the motion to call then had to be voted upon. If the motion was successful, then debate was ended, and the “previous question”, or whatever it was that was being debated, was called for a vote. According to Wikipedia:

Under Robert’s Rules of Order Newly Revised (the book used by most organizations in the United States), when a motion for the previous question is made (whether formally or in a nonstandard form such as “calling the question”, “close debate”, or “calling for a vote”), a two-thirds vote (or unanimous consent) is required to end debate. A single member cannot force the end of debate.[2]

When the US House and Senate were first organized, both bodies contained a rule to call for the “Previous Question”, which, as we said above, was a mechanism to end debate on a matter. Today, the House still has the rule, and there are no filibusters in that body. The Senate, however, no longer has the rule, and, therefore, nearly any matter could be subject to a filibuster. So, how did that happen?

In 1805, Aaron Burr was Vice President during Thomas Jefferson’s first term. As VP, Burr presided over the Senate. Ever the meddler, Burr said to his Senate colleagues that their rules were a mess and contained much duplication, pointing to the Previous Question rule as an example, and proposed that they eliminate it, which they did.

We can only speculate as to Burr’s motive, but we know that he was a schemer. Was he just incompetent, or did he have some kind of plan? Unfortunately, that is just another question to which we will probably not know the answer in this lifetime.

It is interesting to note that, at the time, Burr was under indictment for the murder of Alexander Hamilton in a duel.[1] If I were to interject a personal thought upon the matter of Hamilton’s death, it would be this: I do not ever, well hardly ever, wish for the death of anyone, but, if it were to have been necessary for any of the Founders to reach an untimely end, then Hamilton was, in my opinion, the best candidate. He was a big government man who thought that the states should become only administrative subdivisions of an all-powerful central government and who in today’s time would probably be a globalist.

Evolution of the Filibuster

To repeat, in 1805, the Senate, under VP Aaron Burr, eliminated the “Previous Question” rule. Thus, the Senate filibuster was born.

In 1917, the Senate passed a rule allowing for “cloture of debate”, meaning that, if enough members voted to invoke cloture, then debate would be halted, and the filibuster would be ended. Invoking cloture would require a 2/3 vote, or 67 Senators voting for it.

In 1975, Senate Rule 22 was radically revised as follows:

  • To begin a filibuster, the Senator no longer had to actually do it. All he had to to was say that he wanted to.
  • To maintain the filibuster, the Senator no longer had to keep the floor by continuing to speak. So “talking filibusters” were no longer necessary, and “virtual filibusters” became a reality.[3]
  • To invoke cloture and end debate on a matter, it would now take only a three-fifths vote, or 60 Senators, to pass.
  • Senators no longer had to remain in the Senate while the filibuster was going on. If they wanted to, they could go home, turn on the TV, and watch, say, Mr Smith Goes to Washington, and see how it used to be done.

So nowadays when a Senator wants to filibuster a bill, he just says “filibuster”, and everyone then goes to a local bar to throw down a few, Republicans slapping Democrats on the back and vice versa, before heading on home.

In 2013, Senate rules were once again changed so that it would thereafter take only a simple majority, or 51 votes, to end debate upon judicial nominees, except for Supreme Court justices, which, in the past had only been filibustered one time in history. That one time was when Abe Fortas, a sitting Supreme Court Justice, was nominated in 1968 by President Johnson to fill the position of Chief Justice. The nomination was filibustered, the only time in history before or since, due to Fortas’ serious ethics issues.[4] That is, until this year, 2017, when the Schumer gang filibustered Trump’s SCOTUS nomination of the eminently qualified Judge Neil Gorsuch.

So, the Senate filibuster was an accident and was never intended to exist, either by the Founders or by the 1805 version of the Senate which bumbled it into being, and today’s version of it is little more than a silly caricature of the original version.

 

Footnotes
[1] Sarah A Binder. “The History of the Filibuster | Brookings Institution.” The Brookings Institution, April 22, 2010. https://www.brookings.edu/testimonies/the-history-of-the-filibuster/.

[2] Wikipedia. “Previous Question – Wikipedia.” Wikipedia, February 27, 2017. https://en.wikipedia.org/wiki/Previous_question.

[3] Wikipedia. “Filibuster in the United States Senate – Wikipedia.” Wikipedia, April 20, 2017. https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate.

[4] Wikipedia. “Abe Fortas – Wikipedia.” Wikipedia, April 16, 2017. https://en.wikipedia.org/wiki/Abe_Fortas#Ethics_scandal_and_resignation.

(Article updated April 27, 2017)

 

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Jere Moore
Jere Moore has been blogging about political matters since 2008. His posts include commentary about current news items, conservative opinion pieces, satirical articles, stories that illustrate conservative principles, and posts about history, rights, and economics.