There is lots of wrangling these days over the senate’s filibuster provisions. If we listen to the talking heads, we are led to believe that this legislative procedure is all but written in stone. I think we would be well advised to do some research.
The filibuster is not one of the senate’s rules of order. In fact, the filibuster procedure does not appear anywhere in the senate rules. Let’s consider how the senate filibuster comes to be.
The senate’s rules provide for its members unlimited time to speak when they have been recognized by the chair. The first rules to be adopted by the senate also had a rule for calling the previous question. Calling the previous question is a means of ending debate and it requires a simple majority vote in the affirmative to be successful.
In 1806, Vice President Aaron Burr observed that the senate’s rules were in a bit of a mess and suggested that the previous question rule was redundant. Apparently, without much thought, the senate revised the rules and removed the previous question rule. We don’t have to be very smart to understand that politicians will talk until they are stopped, and it turned out that in the absence of the previous question rule there was no brake pedal to push. The filibuster became a debate tool on steroids. Senators put it to use and over the next hundred years demonstrated that the senate could be effectively stopped through its abuse.
President Woodrow Wilson had written, in his doctoral dissertation years earlier, “It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees.” Then, in 1917 a successful filibuster, by isolationist senators, of legislation authorizing arming of merchant ships to protect against German attack President Woodrow Wilson demanded that the senate adopt a rule change to prevent a “little group of willful men, representing no opinion but their own” from blocking legislation.
The senate could have adopted the previous question rule that had once been part of their rule book, but they didn’t. They could have changed their rule that allowed unlimited speeches once a member is recognized by the chair, but they didn’t do that either. Instead, they adopted something called the cloture rule and decided to require a supermajority of 2/3rds in the affirmative to stop the debate. I can’t help but wonder if some senatorial noses might have been a bit out of joint.
By 1975, it was clear that the cloture rule was causing more harm than good and the threshold for passage was lowered to 3/5ths. There were a couple of other qualifying provisions adopted and the resulting cumbersome effect was to allow more legislative work to get done, but not enough to satisfy everyone. And what was difficult in 1975 became impossible in 2009 when the TEA Party came to town. The filibuster, when used by partisan obstructionists, prevents everything from getting done and that has happened on both sides of the political aisle.
The filibuster has been used many times over the history of our U.S. senate. One of the most frequently filibustered legislative measures has been civil rights and, for me, this fact warns me not to overlook the possibility that some of the love for the filibuster is harbored by closeted white supremacists.
Yesterday, Senator Kyrsten Sinema was censured by the Arizona Democrat party for her refusal to change the filibuster and vote in favor of new voter rights legislation.
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