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Posted at 11:00 AM ET, 12/27/2010

You can't blame the Framers for the filibuster

By Ezra Klein

Thumbnail image for breakingthefilibuster.jpg

If Democrats really do try to reform the filibuster Jan. 5, we're likely to hear a lot about how the Founding Fathers designed the Senate with the filibuster in mind, or how the filibuster is written into the Constitution. Sen. Judd Gregg gave a pretty comprehensive version of this argument last March. Sen. Chris Dodd gave another version of it in November.

But whatever you think of the filibuster, this argument isn't true. The delaying tactic -- which has morphed into a supermajority requirement that underpins the everyday workings of the modern Senate -- is not in the Constitution. It wasn't envisioned by the Founding Fathers. Quite the opposite, actually.

As William Blake shows, the Founders would have been horrified by the filibuster. The Constitution was, in part, a reaction to the paralysis of supermajority requirements. Its predecessor, the Articles of Confederation, required two-thirds of the states to agree before the government could declare war, coin money, enter treaties, or spend or borrow funds. That rendered the government barely able to function. James Madison, in 'Federalist 58,' went at the supermajority directly:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

The Constitution itself was very specific on the moments when the Senate should require more than a simple majority: impeachment of a president, expulsion of a member or overriding a veto. If the Framers had wanted a constant supermajority requirement, they would have mentioned it.

As for the old story where George Washington pedantically explains to Thomas Jefferson that the Senate is meant to do for legislation what the saucer does for coffee ("cool it"), the Senate was designed with important differences than the House: The Senate is smaller than the House, it represents states rather than people, and only a third of the body is up for reelection at any given time. Elections come every six years, and the Constitution originally charged state legislatures, rather than voters, with voting senators in and out of office. Senators themselves have to be older than members of the House, and have to have been citizens for longer. Again, the Framers were pretty specific on the differences between the House and the Senate, and the filibuster didn't make their list. In fact, it was the House where a filibuster-like practice originally reigned before the body changed its rules.

This leads to an obvious question: If it's not in the Constitution, and it wasn't built into the Senate from the start, where does the filibuster come from? Well, it was an accident.

All that said, I want to be clear: If, while filming National Treasure 3, Nicholas Cage unexpectedly discovers that the Liberty Bell is encircled by a secret message in which every man, woman and child who was alive to see the Constitution ratified registered their implacable and eternal opposition to the filibuster, that's not a good argument against the filibuster. The Framers did a remarkable job in 1788, but they were men (and only men, and only white men, and only rich white men, and so on), not gods, and they did not have the information or experience that we have today. We were right to amend the Constitution to allow the direct election of senators, and perhaps the 60-vote requirement is a positive addition to the Senate, if an accidental and recent one.

But insofar as these appeals to revolutionary authority are an important part of contemporary political discourse and routinely get misused when it comes to the rules of the Senate, it's worth setting the record straight. The Constitution didn't create the filibuster. The Framers didn't intend it. The modern filibuster was created in the 1970s, when cloture was moved from two-thirds of the Senate to three-fifths and dual-tracking was implemented, and it only became ubiquitous in the last 20 years, as you can see from the graph atop this post. We may think the filibuster is good or we may think it's bad, but either way, it's ours.

By Ezra Klein  | December 27, 2010; 11:00 AM ET
Categories:  History, Senate  
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Comments

no need to fix the filibuster.. .just make senators actually filibuster . Stand up , hold the floor with none stop talking 24 hours a day for every day.
The filibuster is self limiting.
the magic rules of modern congress are the problem
(like dumping an actual "declaration of war" for executive "war articles")

Posted by: newagent99 | December 27, 2010 11:57 AM | Report abuse

You left out the supermajority requirement tor treaties, Ezra. But yeah, you're quite correct, the filibuster is extra-constitutional. I don't think the framers would be horrified by Senate rules guaranteeing robust debate. But the modern filibuster goes too far by requiring a supermajority for all business. Let's hope the country gets a late Christmas present on January 5th.

Posted by: Jasper999 | December 27, 2010 12:10 PM | Report abuse

Fantastic post, yet again.

I wish everyone knew this.

Posted by: RichardHSerlin | December 27, 2010 1:03 PM | Report abuse

I don't know... the repuglicans have NO qualms about initiating some major fascist police state functions. I'd say there should be a way to stop such nonsense. There is a turning of the worm as it were with new ways to engage the political system by your average citizen and I'm hoping a new generation will get smarter and find ways to clean out these trogladykes and slack jawed southerners back to the porch.

Posted by: WmLaney | December 27, 2010 2:18 PM | Report abuse

If the Senate's rules are not reformed to modify the filibuster, it will just perpetuate the kind of gridlock we've seen in this last year. The nation's work will continue to be done in haste, or be done badly, or not be done at all.

While the Senate and House have the right under the Constitution to create their own rules, how can it be legally possible to adopt rules which, in effect, prohibit the work the Constitution mandates?

Posted by: tomcammarata | December 27, 2010 2:28 PM | Report abuse

The choosing of Senators by state legislatures resulted in the Senate initially being an incredibly reserved and deliberative institution. With the 17th amendment, the popular election of Senators made the Senate much more democratic and responsive to the people. The rise of the filibuster counteracted that trend, in many ways making a similar institution to the one the Founders intended.

Posted by: KeshavSrinivasan | December 27, 2010 2:41 PM | Report abuse

*I don't know... the repuglicans have NO qualms about initiating some major fascist police state functions. I'd say there should be a way to stop such nonsense.*

I don't think the filibuster is going to make much of a difference here. The filibuster's primary purpose has always been to stymie progressive legislation that protect individual freedoms, not to slow down encroachments of freedom or increases of power for law enforcement. The PATRIOT Act, of course, passed with only 1 or 2 dissenting votes. And the "conservative" voters sent that dissenting Senator, Russ Feingold, packing this past November.

Keshav is sort of correct in that with the state-legislature-appointed Senators, senators were more likely to do the bidding of the various corporate and monied interests of their states who controlled the legislatures and that the filibuster has served a similar role, allowing the Senate to stymie federal anti-lynching and civil rights laws.

There could be some kind of cultural and demographic shift such that a minority of senators would agitate to filibuster against conservative legislation, but that has not happened, I do not expect it to happen any time soon. The filibuster only serves conservative interests, not liberal interests, and thus is itself a "biased" institution.

Posted by: constans | December 27, 2010 3:22 PM | Report abuse

Couldn't agree more with your overall premise, that an argument can be made that the filibuster itself is "unconstitutional" in the broadest sense of the term. Still, I wish Democrats (or Republicans, for that matter) wouldn't wait until their majorities suffer before broaching a change to it. It reeks of, for want of a better term, sour grapes.

Posted by: Hieronymous | December 27, 2010 3:45 PM | Report abuse

*I wish Democrats (or Republicans, for that matter) wouldn't wait until their majorities suffer before broaching a change to it. It reeks of, for want of a better term, sour grapes.*

The underlying basis for the filibuster was that it was only something to be used under *extreme* circumstances for things that were unacceptably offensive to the Senate that Senators were willing to sacrifice anything and everything to stop, like civil rights laws. The filibuster has been now effectively violated those norms of senate behavior to be turned into a "gimme", where all legislation and nominations are filibustered at all times simply to make everything require 60 votes and 2 extra weeks of procedural time. So now that the social norm has been violated as egregiously as it have, the rule needs to be changed. Not out of "sour grapes" as much as "this can't go on this way." It is tragic that some people are going to perceive it as a "sour grapes" thing, though. I suppose children revel in how they "force" their parents to change the rules when they find their child exploiting them to get away with stuff they shouldn't be doing, too. But as a parent, one must do what one has to do when dealing with the unruly and misbehaved. Such is the same as with the Republican senate caucus.

Posted by: constans | December 27, 2010 4:02 PM | Report abuse

Couldn't agree more, constans. The fact remains that when Democrats were in the minority, they championed the necessity of the filibuster. The only thing that has changed now is they are in the majority, but not one big enough under the current rules to get everything they want to passed.

Perhaps they should implement the change to become effective at some future date, say, seven or ten years hence, when who knows who will hold the majority. I fear that's the only way it will happen.

Posted by: Hieronymous | December 27, 2010 6:00 PM | Report abuse

Riders on Bills should never have been allowed and have been the downfall of the people to determine what and for whom they're voting.
One vote for one issue.
Transparency.

Posted by: kacameron | December 27, 2010 6:42 PM | Report abuse

I recently was discussing this with someone, and I simply asked them why the founding fathers would specifically dictate that the Vice President break tie votes if they intended for every vote to take a 60/40 supermajority to pass. Needless to say, my friend didn't have a good answer.

Posted by: flounder2 | December 27, 2010 9:18 PM | Report abuse

I recently was discussing this with someone, and I simply asked them why the founding fathers would specifically dictate that the Vice President break tie votes if they intended for every vote to take a 60/40 supermajority to pass. Needless to say, my friend didn't have a good answer.

Posted by: flounder2 | December 27, 2010 9:19 PM | Report abuse

The key here, as others pointed out, is to recognize the distinction between the historic filibuster and the modern one. We need to be careful to keep the debate focused and the terminology accurate.

I don't think anyone feels the historic filibuster ("bop till ya drop") is such a horrible thing. Indeed, historically, it's had its moments. And it's a peculiarly American legislative oddity that still deserves a place.

The problem is, these modern supermajority cloture votes are wrongly being termed "filibusters". This is a wrong use of the term, and unfortunately it becomes a big deal because it plasters a false veneer of historical legitimacy onto something of very recent vintage and questionable appropriateness.

Let the filibuster remain in its original form -- let some longwinded orator recite the phone book all day and night, if he can still find one -- but pass rules to stem this increasing epidemic of supermajority cloture votes that entangle and frustrate the people's work.

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Posted by: sdgashasdg | December 28, 2010 1:15 PM | Report abuse

There are too many unintended consequences that go along with passing laws that I honestly believe that the super-majority IS the way to go. If you can't get 60 Senators to pass a bill, it shouldn't be passed.

Posted by: marteen | December 28, 2010 3:47 PM | Report abuse

The Senate has become a vastly different body than what Senator Byrd once referred to as the "world's greatest deliberative body."

In recent years we have seen very little debate as well as very little transparency. To say that reform is needed is an understatement.

My post to Katrina vanden Heuvel's 12-28-10 article on filibuster reform:

What was originally intended as a tool to insure robust debate on an issue the filibuster rule has become what has often been called “the tyranny of the minority” - a tool used primarily to obstruct the will of the majority.

As a result, the Senate has become largely dysfunctional and a laughing stock.

I agree with those who fail to see how a minority should be able to thwart the will of the majority under a constitution founded upon basic democratic principles of majority rule.

Consequently, I have serious doubts about the filibuster rule’s constitutionality. (Some constitutional law experts have also expressed such doubts - see the 1997 Stanford Law Review article by professors Catherine Fisk and Erwin Chemerinsky.)

While the filibuster rule may enable Senators to avoid difficult votes they weren’t elected to duck votes.

It’s time that they start doing their jobs and they can start by dropping or changing this abominable rule.

Posted by: billeisen1 | December 30, 2010 4:51 AM | Report abuse

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