(Admin note: Please refrain from discussions of a modern political context regarding this article on the filibuster. You can visit the author’s blog where such is relevant. Discussion of the historical context however is welcome as always. Thank you)
If you’ve been watching the news at all, you have probably heard people mention something called the filibuster. We are not going to go into the implications and how it affects modern politics in this article. (If you want to see that discussion, wander over to my blog https://deconstructingus.com/2022/06/slavery-and-the-constitution/) Here we are going to focus on the history of it and how it came to be in our government.
Technically speaking, a filibuster is one member of a legislative body engaging in a prolonged debate to delay or prohibit the decision on a piece of legislation. It’s a strange word. I said it to my kids and they thought I was talking about a kind of nut. I think they thought I said philbert. The word itself is a 16th century Dutch term vrijbuiter, which means “freebooter” or pirate. From there it went back and forth from English to French to Spanish and back to English again, all referring to those who stole goods. In the 1850s, a filibuster was a person who traveled to Central America or the Spanish West Indies to foment revolutions. These people were generally from the United States. It didn’t come into common usage in American English until the 1890’s, where it took on the meaning we use today.
However, the concept of talking a bill to death has been around since the days of the Roman Republic. There was no debate limit in the Roman Senate. The first Senator that figured this out was Cato the Younger (95 BCE – 46 BCE). He apparently was very long winded and could talk for hours, making them extremely effective for forstalling a vote. He used this talent to thwart Julius Caesar at least twice, however Caesar arguably out maneuvered him both times. After this, the tactic was off and running. There are some historians who argue that the filibuster was a contributing factor to why the Roman Republic collapsed.
Around the world, developing democracies in the 19th century toyed with leaving this procedure in their legislative rules for minority parties, but quickly moved it out. The British House of Commons has instituted measures over the decades “to limit the rights of minority members to obstruct”. Hamilton obliquely referenced the filibuster in Federalist Papers number 22, “If a pertinacious minority can control the opinion of a majority … [the government’s] situation must always savor of weakness, sometimes border upon anarchy.” The Founders never specifically spelled out a filibuster because they were well read in classical history and recognized those that went before them- the Romans. However, the American Congress does not have any of these measures. How did we get here? Well, blame Aaron Burr. Yes, that same Aaron Burr from the musical. The talk less, smile more guy. Unfortunately, he led others to threaten to talk a whole lot more and it’s caused a million problems. Burr left the door open for the modern filibuster as we know it through a procedural vote.
All of this was ferreted out by Sarah Binder, a political scientist from Brookings. So Burr heads back to the Senate, just after killing Hamilton in a duel and being indicted for it. (For more on this, please see http://www.historynaked.com/hamilton-burr-clash-titans/ ) He informs the Senators that he has been reviewing the procedural rule book and in his role as presiding officer he felt there were some superfluous rules. The one he pointed out in particular was the “previous question motion”, and he requested that it be removed. The Senate agreed and it was dropped from the rule book. Before this the rule books for the House and the Senate were exactly the same, and both included the “previous question motion”. This allowed a filibuster to be ended with a simple majority of votes, in modern times this is 51. With this rule gone, there was no way to stop a filibuster.
No one figured this out until 1837, and from that moment on the filibuster was off and running. There was nothing done until 1917. America was not yet in World War I, and a bill was before the Senate to arm merchant ships. The fear was this would provoke Germany, and a group of Senators launched a filibuster keeping the bill from a vote prior to the end of the Senate term. President Woodrow Wilson was livid and demanded something be done. He said that a “little group of willful men, representing no opinion but their own,” should not be in control of future legislation. Rule XII was proposed by Wilson as a matter of national security. This became known as the cloture rule. However, because of obstructionism a deal to get a supermajority, or two thirds vote, instead of a simple majority to end the filibuster. After a bitter fight, the super majority was downgraded to 3/5ths in 1975, which in the modern context is 60 votes. Since 1917, the cloture rule has only been invoked five times.
The filibuster most people can point to is the one in Frank Capra’s movie, Mr. Smith Goes to Washington. In it, Jimmy Stewart as a naive new senator uses a filibuster to block the creation of a dam that would destroy land for a boy’s camp. Stewart’s character speaks for 23 hours and collapses but the other Senators are inspired by his resilience and the camp is saved. Stewart is the hero fighting against the greedy fat cats to do something good for his area and uses the filibuster to do it. However, this is exactly the opposite of reality. In the real world senate, the filibuster has been used to prevent or hold up legislation for voting rights, civil rights, and even ratifying the Treaty of Versailles. Unfortunately, people still see it as the tool of the little guy against the establishment.
So the stalemate stands.