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How the filibuster was invented

So long as we're talking history, I had an interesting chat this afternoon with political scientist Sarah Binder. Binder is a congressional expert who wrote a book on the filibuster, and I happened to ask her about the origination of the practice. She laughed. "It takes a bit of back story," she said.

"We all know the Constitution says the House and Senate can make their own rules," explains Binder. "So in 1789, each chamber draws up their own set of rules. And both sets of rules have a previous question motion, which is the motion that the House uses to cut off debate by majority vote."

Quick interlude here, because it confused me: The "previous question motion" refers to the motion asking whether the body should move to a vote. It's called "previous question" because the language is generally something along the lines of "shall we now move to the main question?" In other words, the motion shuts down the previous question -- hence the name. Alright. Back to Binder.

"In 1805, Aaron Burr has just killed Alexander Hamilton. He comes back to the Senate and gives his farewell address. Burr basically says that you are a great body. You are conscientious and wise, you do not give in to the whims of passion. But your rules are a mess. And he goes through the rulebook pointing out duplicates and things that are unclear."

"Among his suggestions was to drop the previous question motion. And they pretty much just take Burr's advice. And once it's gone, it takes some time for leaders to realize that they can't cut off debate anymore. But the striking part to me was that we say the Senate developed the filibuster to protect minorities and the right to debate. That's hogwash! It's a mistake. Believe me, I would've loved to find the smoking gun where the Senate decides to create a deliberative body. But it takes years before anyone figures out that the filibuster has just been created."

And once they do figure it out, of course, they could never rid themselves of it because the minority never had an interest in letting go of their advantage. Binder's history doesn't have much bearing on whether the filibuster is a good thing or a bad thing. Plenty of accidents are happy accidents. But it should put to rest the idea that the filibuster somehow represents the will of the Founders, or it was adopted as part of a conscious effort to protect minority rights. The filibuster was an accident. It has been reformed a number of times (notably in 1917, when cloture was set at 67 votes, and in 1975, when cloture was lowered to 60 votes). It can be kept in its current state, strengthened, weakened or abolished. There is nothing sacred about it.

By Ezra Klein  |  March 8, 2010; 5:52 PM ET
Categories:  Senate  
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Next: Reconciliation

Comments

All of this, and more, can be found at Binder's CSPAN Book TV interview:

http://www.youtube.com/watch?v=E6-FWh1aWZc

She's great.

Posted by: gocowboys | March 8, 2010 5:54 PM | Report abuse

The author's message helps to prove that persistence sometimes does produce results.

Posted by: rmgregory | March 8, 2010 6:26 PM | Report abuse

Clearly if we're going to retain the filibuster, we need to bring back duels and cane-beatings on the Senate floor as well.

Posted by: tfsteven | March 8, 2010 6:52 PM | Report abuse

How about getting Supreme Court Justice John Roberts in this 'interpretation of Constitution' business? Recently Roberts has established his credentials with Conservatives, so that can be useful.

Point is, what Ezra is talking in this post - that is all Constitutional Litigation in some sense and Prof. Binder, Ezra or his commenter talking about it or whining about it is not going to take us anywhere near.

You want to do Politics of Senate Reforms? Then you ought to be able to say - 'screw with the History, this is the Senate Reform we want and please elect me on that platform'. Garner votes on Senate Reform Plank, that is the way Democracy works. Litigation, I do not know if that is a right route.

To be fair, Ezra would not have posted this as a political argument, but just would have shared some interesting 'tit-bit' here.

Posted by: umesh409 | March 8, 2010 6:55 PM | Report abuse

Does no one take American Government in high school anymore? I remember this from my year long Sophomore level American Government class with Mr B. I would think you cannot be a high school graduate and not know this (or at least recall it when prompted) but a political reporter, a sentor, geez - recall their credentials.

Posted by: sailor0245 | March 8, 2010 7:01 PM | Report abuse

A very important point of all of this is that the filibuster clearly was not intended by the founding fathers.

It wasn't even possible before 1805!

There was no possible way to have a filibuster when the country was founded, and not until the 1800s!

Posted by: RichardHSerlin | March 8, 2010 7:20 PM | Report abuse

For the super nerdy people who want the most in-depth analysis I have seen available online, check out this article from the Harvard Journal of Law and Public Policy-

http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf

I also think Ezra underscores the level of obstruction it took to get to limit the filibuster at all (and even more notably, that it took almost 100 years after the minority discovered the loophole for any successful attempt at a fix). It was not until about a dozen unruly Senators decided to block a resolution allowing American trade sea vessels to arm themselves against the Germans in WWI that the public outrage was enough to force the 67 vote cloture rule.

It's literally been a constant struggle since its discovery, only getting more dangerous in recent times as Senators have come to think of themselves as celebrities.

Posted by: cbaratta | March 8, 2010 8:53 PM | Report abuse

I hope some of the commenters here don't take this the wrong way, but the Constitution actually says nothing about a simple majority vote in either the Senate or the House, and as Ezra has pointed out previously, only specifies when a 2/3 majority is needed. But, if we turn to the Federalist, we can see Hamilton (Burr's victim), in Federalist 22, get to the nub of things starting with: "The necessity of unanimity in public bodies, or of something approaching it, has been founded on a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto..." He goes on about "tedious delays; continual negotiation and intrigue; contemptible compromises of the public good" that pretty much describes what's been going on over the past year. How ironic that, Burr, as Prof. Brinton points out, would set in train changing of rules in a way that would encourage just the things Hamilton warned about.

Posted by: xpatriate | March 8, 2010 9:21 PM | Report abuse

Whoops, I meant Prof. Binder, sorry.

Posted by: xpatriate | March 8, 2010 9:23 PM | Report abuse

Thanks for this week bit of Congressional history. U.S. voters need more of it.

BRAVO!

Posted by: valkayec | March 9, 2010 2:09 AM | Report abuse

As an interesting sidenote, there was considerable recorded discussion regarding Senate rules prior to the March 26, 1806, adoption. For example, on Monday, 5 December 1803, two years before Burr's Farewell Address, the Senate began to consider the rule "That when any bill, resolution, or amendment, shall be agreed on, no reconsideration shall take place, unless moved for by a member in the majority; nor shall any reconsideration of a bill, resolution, or amendment, take place the succeeding day, but with the consent of FOUR-FIFTHS of the House."

The Gold & Gupta article (referenced in a comment above) is as reliable as are the much discussed papers of John C. Yoo; that is, some bias exists in the presentation. In a footnote, Gold & Gupta acknowledge certain limitations.

Posted by: rmgregory | March 9, 2010 4:52 AM | Report abuse

A very important point of all of this is that the public option clearly was not intended by the founding fathers.

It wasn't even possible before 2010!

There was no possible way to have a public option when the country was founded, and not until the 2000s!

Posted by: Holla26 | March 9, 2010 11:04 AM | Report abuse

Thanks Ezra for reminding us that the Filibuster was not handed down from Mt. Sinai written on a stone tablet. Actually, the idea that a minority can hold sway over the majority seems to contravene the constitutional prescription of one vote per legislator.

Posted by: Reesh | March 9, 2010 11:11 AM | Report abuse

If cloture was set at 2/3 in 1917, it would have been for 64 votes, as there were at that time 48 states.

Posted by: threegoal | March 9, 2010 4:09 PM | Report abuse

A very important point of all of this is that the filibuster clearly was not intended by the founding fathers.

Neither was social security or a government that would ever run trillion dollar deficits as far as the eye can see.

Posted by: Cutaway | March 9, 2010 6:11 PM | Report abuse

I think Ezra has placed too much emphasis on the number of votes required. In earlier iterations of the "filibuster," the person filibustering had to actually be on the Senate Floor debating (anyone remember "Mr. Smith Goes to Washington"?). You could be reading from the phone book, but you had to be standing up debating. I think Strom Thurmond holds the record by holding the floor for 24 hours straight. The moment a Senator stopped talking, even to go to the bathroom, his right to debate ended, and if there was no one else there to take his place, a cloture vote was not needed, the debate ended. The cause of the problem now is that all a senator has to do is file "an intent to filibuster" and that is sufficient to require the cloture vote of 60 votes. Let's start by making senators get up and actually debate the way they did in the old days.

Posted by: paul90 | March 9, 2010 6:30 PM | Report abuse

tfsteven wonders if dueling should be brought back.

If it was, then political discourse would be a lot more polite. Behavior such as that exhibited by Reid, Schumer, and most recently Franken of Minnesota would naturally result in a meeting at dawn the next morning, and the things Ted Kennedy said about Robert Bork in 1987 would have led to history-changing consequences when he and Bork met with either pistols or swords.

Posted by: JBaustian | March 9, 2010 10:47 PM | Report abuse

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