Want to filibuster a bill? Go to the floor and talk. And talk. Until 51 Senators kick you off.
When I figured out that the modern filibuster is first cousin to the three-fifths clause and the Electoral College, its use by the 21st century GOP and Mitch McConnell made so much sense.
Follow along; I’ll show you how I got here. And in the process, how I evolved from someone who has historically honored norms to someone who sees clearly how the contemporary Senators have debased them. Trump was the culmination, not the initiation, of the Republican Party’s rejection of history.
First, the Constitution is predicated on majority votes, not the supermajority required by a filibuster. The Articles of Confederation (remember them? they failed) required a supermajority. Each state had one vote, and 9 of 13 states were needed to pass any law of substance. Based on personal experience, the framers crafted a Constitution that has limited requirements for a supermajority. For example, a two-thirds majority is needed to override a presidential veto, to expel a member of the Senate, or to convict a federal officer of an impeachable offense.
Nor was the filibuster part of the original Senate. The framers knew it could/would be abused. It did not come to life until they had all died.
“Originally, Senate rules included a provision allowing a majority to end debate, and an early manual written by Thomas Jefferson established procedures for silencing senators who debated ‘superfluous, or tediously.’ Obstruction was considered beneath them.”
But John C. Calhoun (SC) — the man who started the Civil War — wanted a Senate where the minority could block the majority. James Madison (VA, the “father of the Constitution”) believed majority rule was the “republican principle.”
However Calhoun’s obstructionism was only a delaying tactic. Almost every filibustered measure before 1880 eventually passed.
Senate votes remained majority-rule into the 20th century. Enter WWI and Woodrow Wilson.
“During World War I, before the United States had entered the war, a group of 11 senators filibustered a bill that would have armed American merchant ships to protect them from attacks by German U-boats.”
“Referring to the 11 senators as ‘a little group of willful men,’ Wilson stated, ‘The only remedy is that the rules of the Senate shall be so altered that it can act’.”
So in 1917, the Senate created Rule 22 to “terminate successful filibustering.” With this rule, a supermajority (then two-thirds) could bring closure (or “cloture”) to end a talking filibuster.
Lest you think I exaggerate: Jim Crow-era segregationists repurposed the 1917 Senate rule to force every civil rights bill to clear a supermajority threshold. ONLY civil rights bills were blocked in this way.
“During the filibuster of the 1957 Civil Rights Act, then-Democratic Sen. Strom Thurmond set a record by holding the Senate floor continually for 24 hours and 18 minutes. Seven years later, the ultimately unsuccessful effort to obstruct the Civil Rights Act of 1964 lasted a total of 74 days…”
Prior to 1966, the maximum number of filibusters in a single year: five. From 1971 to 1973, 10 each year. In 1974, there were 18. These were still talking filibusters.
Then the talking filibuster slipped into the night, replaced by the need to get 60 votes to move legislation to a public debate/discussion/vote.
“Reform” was dropping from two-thirds vote to three-fifths vote needed to override the filibuster. TODAY, any senator can invoke the supermajority threshold simply by registering an objection to a bill via email.
Filibuster abuse still ran rampant.
“In the fall of 2009, for instance, a filibuster blocked a bill to extend unemployment benefits for weeks, even after the House approved the measure with substantial bipartisan support. The hold-up had little to do with the merits of the benefits – senators were apparently squabbling about unrelated issues.9 Incredibly, when the bill finally reached the Senate floor, it passed unanimously.”
The result: predictable gridlock.
As of November 23, 2010, Senators had filed 125 motions to end a filibuster during that Congressional session (2009-2010). This was more than the total number filed from 1919 through 1975.
In 2003, political scientist David Mayhew summarized the status quo as “[a]utomatic failure for bills not reaching the 60 mark.”
“Cloture votes reached a high of 218 for the two-year period under the 113th Congress (2013–2014). In the most recent full session, the 115th Congress (2017–2018), there were 168 cloture votes.”
Amazing that the “strict Constitutionalists” are the very people arguing for the filibuster, once again, illustrating their shameful and willful intellectual dishonesty.
A minority of a minority: theoretically, three-fifths means 60-40. So, 40% of the population could trump 60%. But in actuality, the 21 states (42 Senate votes) with the fewest number of citizens account for 11% — not 40% — of the US population. The representatives of this 11% can stop any legislation from moving to both debate and vote. By 2040, two-thirds of Americans will be represented by just 15 states: not even a majority of the Senate. Two-thirds.
With this full history in mind, I hope you’ll join me in debunking the arguments that the filibuster is an honorable and necessary artifact of the original Senate. Instead, the artifact of WWI found a new champion in a leader of the Confederacy and then southern senators opposed to desegregation. In modern parlance: White supremacists are the true backbone of the filibuster.
I’m with Thomas Jefferson: we need modern “procedures for silencing senators who [debate] ‘superfluous, or tediously.’” We need to return to majority vote and the traditional parliamentary procedure: call the question.
Want to filibuster? Go to the floor and talk as long as you like, so long as 50 (or more) Senators agree with you. Should your support drop to 49 other Senators, the Vice President can end debate. Should it drop to 48, the other 52 will let you know that it’s time to Move On.
Postscript:
Wyoming voters have 68 times as much representation in the Senate as Californians. When the Constitution was ratified, Virginia had about 13 times as many people as Delaware; that was the largest disparity at the time. These data are reflect Senate issues but they are reflected in unequal representation in the House. This cannot be pointed out too often: the HOUSE OF REPRESENTATIVES NEEDS MORE SEATS.
And a pox on Sen. Joe Manchin of (D-WV) and Kyrsten Sinema (D-AZ) for their opposition to saying sayonara to supermajority rule.
Sources:
- 10 reasons why America’s first constitution failed
- Filibuster Abuse
- Joe Biden May Have Only 2 Years to Get Things Done
- John C. Calhoun: The Man Who Started the Civil War
- The Impact of the Filibuster on Federal Policymaking
- Who’s the Father of the Constitution?
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