No rant today, just some musings on the Senate procedural rule commonly known as the filibuster. The word filibuster derives from a Spanish word, filibustero, which translates loosely as “pirate” and was used by the Spanish in the 18th century to describe American adventurers—most of them from Southern states—who worked to overthrow Spanish rule in Central and South American countries. In political parlance, it came to mean pirating discussion of legislation to delay its passage.
Article One, Section Five of the U.S. Constitution states, “Each House may determine the rules of its proceedings.” It then goes on to provide a relatively short list of specific instances where a supermajority (2/3 rather than one half) is required for passage. Notably, changing either House’s procedural rules is not one of those instances.
Indeed, the filibuster was not an option for the first U.S. Senate that gathered in 1788. In that body’s procedural rules debate on any bill could be ended by one Senator’s decision to “move the previous question,” a device in Robert’s Rules of Order that, once moved, requires an up or down vote on the question being debated.
In 1806, Senator Aaron Burr argued that, since the motion had been used only once in the preceding four years, the provision allowing it should be expunged from the Senate’s rules. The Senate agreed and rewrote its rules, this time not providing any specific mechanism for ending debate. It was, thus, in 1806 that the possibility of one Senator delaying vote on an issue by taking and refusing to yield the floor became possible.
It remained a theoretical option until 1841 when Kentucky Senator Henry Clay tried to close debate on a bill to charter the Second Bank of the United States with a simple majority vote. Senator William King rose to object, and when enough fellow Senators sided with King to convince Clay that they could indeed keep talking “for the winter,” Clay backed down.
In 1892, the Supreme Court ruled in United States v. Balin that Senate rules could be changed by simple majority vote. Because the Constitution clearly gives the Senate the right to write its own rules, the Supreme Court decision did not require Senate rules to be subject to a simple majority vote, it simply allowed them to.
It was not until 1917 that the Senate formally wrote into its rules what was required to end debate on a bill. The so-called “Cloture” rule was adopted by a Democratic Senate at the urging of President Woodrow Wilson, who was enraged that a group of 12 Senators had managed to kill a bill that would have allowed Wilson to arm merchant vessels to protect them against German U-boats. That rule called for a 2/3 majority of those voting to end debate.
During the 1950’s and 1960’s, virtually every attempt at civil rights legislation was filibustered by Southern senators. This led Senator Mike Mansfield, the Senate Majority Leader, to put in place what was called the “two-track” system, meaning that multiple bills could be on the Senate floor at the same time, with each being assigned specific days and/or times of day to be debated. Mansfield’s motive was to prevent a filibuster from bringing Senate business to a halt, but by making it no longer necessary for filibusterers to hold the floor indefinintely, the practical effect of the two-track system was to make filibusters easier to mount.
In 1975, then Senator Walter Mondale led a movement to revise the Senate rules again so that cloture could be accomplished by a 3/5 majority of Senators sworn—generally meaning 60 out of 100. To get that lower number however, Mondale and his group had to make two compromises: a) the vote had to achieve 3/5 of the members of the Senate, not of the Senators actually voting; b) they had to leave in place the portion of Rule 22 which required a 2/3 majority to change Senate rules.
You may remember in 2005, then Republican Majority Leader Bill Frist responded to Democratic threats to filibuster several of George Bush’ judicial nominations by advancing the idea that Vice-President Dick Cheney, in his capacity as President of the Senate, could rule that filibustering a judicial nomination was unconstitutional because the Constitution grants the power of judicial nomination specifically to the President, with the advice and consent of the Senate. His contention was that, in this instance, the term “consent” meant consent of the majority, not consent under Senate rules. That would have effectively blown away the power of the filibuster, hence Mississippi Senator Trent Lott’s description of it as the “nuclear option,” a thought that so frightened members of both parties that 7 from each side formed the “gang of 14” and negotiated a compromise.
I’ve run through all this history because it seems clear to me that, historically, the filibuster was put in place and kept in place to insure that the minority would have an opportunity to voice its objections to a bill, perhaps sway public opinion, or at the least, create time during which negotiation and perhaps compromise could occur. Indeed, that is how the filibuster has been used in every Senate except the one just ended.
In the 111th Senate, the 100+ cloture votes to end filibusters set a new record. As voluminous as that number of votes is, it actually doesn’t give a true picture because it doesn’t include the numerous bills the Democratic leadership never brought to the floor at all because of Republican threats to filibuster. What we have witnessed over the past 5 years has been the use of filibusters not to delay legislation but to defeat it, a practice for which there is no historical precedent.
When the 112th Senate convenes later this month, Majority Leader Harry Reid will have in front of him a petition signed by every member of the Democratic caucus calling for reform of the filibuster rule. The Republicans will argue (have already begun doing so, in fact), that existing Senate rules require a 2/3 majority to make any changes in those rules.
This is a specious argument for two reasons. First, as noted above, the Constitution gives the Senate the exclusive right to create its own procedural rules and does not include doing that among the list of things that require a super-majority. Second, and maybe more important, it is a long-established principle of English and American common law that one legislature's procedural rules cannot bind its successors. Hence, even though the Senate rules passed in 1975 require a super-majority to change the rules, a new Senate has Constitutional authority, and Supreme Court affirmation of that authority, to change that rule via a simple majority.
It will be interesting to see what Senator Reid does with his party’s petition.
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