This week I am diving into the first listener request of 2022 - The Filibuster.
A complicated and confusing piece of senate procedure, the filibuster has been in the news for the last few years as political pundits discuss why our current Congress seems unable to achieve any legislative progress.
What exactly is the filibuster? How did it originate? Tune into this episode to find out.
Desilver, Drew. “Nothing lame about this lame duck: 116th Congress had busiest post-election session in recent history.” Pew Research Center. January 21, 2021. Accessed January 1, 2022. (LINK)
Elder, Robert. “No, John C Calhoun Didn’t Invent the Filibuster.” The Bulwark. September 20, 2021. (LINK)
Jefferson’s Manual. Government Info. Accessed December 24, 2021. (LINK)
Jentleson, Adam. Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. New York: Liveright Publishing, 2021.
Hamilton, Alexander. The Avalon Project: The Federalist Papers, Number 22. (LINK)
Lau, Tim. “The Filibuster, Explained.” Brennan Center for Justice. April 26, 2021. (LINK)
MacNeil, Neil & Richard A Baker. The American Senate. New York: Oxford, 2013.
Madison, James. Federalist Papers No 10 (1787) - Bill of Rights Institute. Bill of Rights Institute. Accessed December 24, 2021. (LINK)
Schneider, Judy. “House and Senate Rules of Procedure: A Comparison.” Congressional Research Service. United States Senate. April 16, 2008. (LINK)
Serwer, Adam. “Lyndon Johnson was a civil rights hero. But also a racist.” MSNBC. April 11, 2014. (LINK)
U.S. Congress, Sentate, Committee on Rules and Administration, Examining the Filibuster. 111th Congress, 2nd session, April 22, May 19, June 23, July 28, September 22 and 29, 2010. (LINK)
“U.S. Senate: House and Senate Adopt Joint Rules.” United States Senate. Accessed December 23, 2021. (LINK)
“U.S. Senate: About Filibusters and Cloture: Historical Overview.” United States Senate. Accessed December 23, 2021. (LINK)
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If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.
Welcome to Civics and Coffee. My name is Alycia and I am a self-professed history nerd. Each week, I am going to chat about a topic on U.S history and give you both the highlights and occasionally break down some of the complexities in history; and share stories you may not remember learning in high school. All in the time it takes to enjoy a cup of coffee.
Hey everyone, welcome back.
When crafting the United States Constitution, the framers debated and argued over many functions and powers within the various bodies of government. They were committed to creating a representative government that could withstand an evolving populace and captured a variety of opinions. We see this throughout the document with powers clearly assigned to certain branches and setting the parameters on who could serve as a representative and senator.
However, one thing missing from the text of the constitution is what we know as the filibuster. A parliamentary tool used to delay, and sometimes successfully block, a bill vote, the filibuster is a controversial and sometimes confusing piece of the legislative process. But if it isn’t in the constitution, where did it come from? And what exactly does it do? How does it work?
For the first listener request of the year, I am diving into the history of the filibuster.
Grab your cup of coffee, peeps. Let’s do this.
The filibuster has been in the news a lot lately, with various entities throwing their arguments either for keeping the filibuster or eliminating it. Those in favor tend to point to the fact the filibuster has been around for generations and argue the framers wanted to include a space for the minority to argue their side of any proposed bill or motion. Those who argue it should be eliminated point to the historic use of the filibuster, typically utilized to prevent civil rights legislation and argue the framers explicitly did not want minority rule, having learned their lessons with the first draft of the American government, the Articles of confederation.
I discussed the articles of confederation on an earlier episode of the podcast, but basically the articles required a super majority of the states to agree to pass proposed legislation, which equated to nine of the then thirteen states. This made the likelihood of any law passing slim since it was hard to gain sufficient consensus amongst the varying regional differences between the states. This, along with various other issues with the articles is what led to the call for a new central government and the constitutional convention.
The quote I started this episode with is from none other than super federalist, Alexander Hamilton. Once the constitution was drafted and sent out to the states for ratification, he and his fellow federalists John Jay and James Madison drafted a series of essays outlining both why the articles of confederation had to go and why the new constitution was the right replacement. In Federalist 21 and 22, Hamilton trained his pen on highlighting the issues with the articles of confederation; one of those issues, he argued, was the ability for the minority to have an oversized voice in legislative matters.
The theme of majority and minority opinions are peppered throughout the various federalist papers, including Madison’s Federalist 10 where he discussed the impulse of men to fall into factions and how to best safeguard against individual interests. However, at the end of the day, Madison, and most of the other federalists, came on the side of majority rule. When reviewing the constitution, Article One Section Seven only requires a two thirds majority - or a super majority - in order to override a president’s veto. Otherwise, quote: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States” end quote. You’ll notice the text simply says passed the house and senate.
And for the most part, majority rule was the unstated understanding and expectation.
Once the constitution was ratified and the new government installed, the members of both houses had to figure out for themselves just how to govern and what procedures to follow. This led to the creation of a set of rule books for both the House and Senate. These rule books tried to fill in the gaps of procedure and expectations surrounding running the nation’s business not explicitly outlined in the constitution.
Senators and Representatives still spoke up to object to legislation, including during the first session of Congress in 1789. However, there were guidelines in place outlining debate could be cut off once a majority felt the discussions no longer held value. This was known as the previous question rule. Under the previous question rule, congressmen would offer a motion for the previous question, thereby ending debate and preventing additional amendments from being added. Invoking the previous question motion also brings the bill to the floor for an immediate vote.
Initially, both chambers of congress had the previous question rule in their guidelines, though it wasn’t used as a motion to stop debate just yet. In 1805, Vice President Aaron Burr - who was also the president of the Senate given his position - suggested the inclusion of the previous question rule seemed redundant and advised the senate chamber to purge it from its rulebook. And in the next session in 1806, the Senate did just that.
So while the option to prevent legislation was there, it wasn’t widely utilized. Most still relied on the tradition of majority rule and were not concerned when debates sprang up, as historic practice meant the bill would come to the floor eventually. All the majority had to do was wait it out. A few congressmen successfully blocked proposals using what would become the filibuster, including John Quncy Adams who successfully stopped the annexation of Texas in 1838 through a twenty two day marathon of speeches, stopping only when Congress adjourned for summer recess.
Despite this history of delays from other members of congress, there are some who point to John C Calhoun, former Vice President and Senator as the originator of the filibuster . It stems from his participation in the battle over legislation in 1841 proposing a number of domestic economic policies, including a new national bank. This fight prompted Henry Clay to threaten a reform of Senate rules to bring back something similar to the previous question rule to limit debate, however he faced stiff opposition and the attempt to reform was dropped.
And though Calhoun used the tool, and advocated for a concept known as concurrent majorities, he was not the first to employ the delay tactic as I mentioned a few minutes ago. I think it makes a bit more sense to say Calhoun had an influence on the modern version of the filibuster we see today, however he never saw the idea of concurrent majorities during his lifetime, given the Senate’s overwhelming practice of ending debate without the need for a specified motion.
While there had been successful and attempted “filibusters” through the history of the congress, it wasn’t until the 1850’s the term sprang up and entered into the American memory. The word filibuster is believed to be the combination of Dutch and Spanish words describing pirates, and was documented as early as 1851. It was during this period that the use of filibusters began to increase, aimed at things such as civil rights legislation and voting laws. As the use of the filibuster increased, so too did calls for its reform. And as the House never repealed their previous question rule, this remained solely a problem for the senate to figure out.
The matter came to a head finally in 1917, when Woodrow Wilson grew frustrated over a filibuster preventing his ability to provide arms for merchant ships during World War I. Finally able to frame the issue as one about national security, the Senate was able to amend their rules and created a procedure for ending obstructionist debate. Known as Rule 22, the measure provides the senate an opportunity to invoke a vote to end debate, known as cloture. Originally, in order to successfully invoke cloture, the vote had to pass with two thirds of the Senators present in the chamber.
Prior to the implementation of rule 22, the majority only had to wait out the minority before taking their vote - which was typically enough. However, with the invention of cloture - and the requirement that the vote to invoke cloture could only be done with a supermajority - meant that it was now the responsibility of the majority to secure sixty votes for any piece of legislation they wanted passed. This also helped establish the silent filibuster; since the majority could only end debate with the requisite votes, the mere threat of a filibuster was enough to prevent a bill from hitting the floor for a vote.
Those who filibustered - or threatened to filibuster - pointed to their desire to debate the bill and make changes, however they rarely actually debated the bill when given the opportunity, further giving credence to the argument that the filibuster was - and is - not being used to actually debate the merits of any given proposal. Between 1917 and 1940, the Senate only successfully voted for cloture five times. Between reconstruction and 1964, the only bills prevented by the filibuster were those tied to civil rights, such as anti-lynching and anti-poll tax bills.
One man who had a significant amount of influence in the development of the current version of the filibuster is former Georgia Senator Richard Russell. Russell, a devout white supremacist, was a master of senate procedure and used this to knowledge to craft changes to Senate Rule 22 in 1949. A loophole to the filibuster was discovered with the rule the year prior, leading to president pro tempore Arthur Vandenberg to declare the rule invalid.
Basically senators could delay bill votes in one of two ways: arguing against motions to proceed before a bill hit the floor for a vote which were exempt from cloture under rule 22 or against the bill itself, which was included in the rule, thereby forcing the supermajority to end any potential debate. In his view, Vandenberg found that since senators could choose when to avoid cloture, then it didn’t really exist. This led to some back and forth between Russell, who was dedicated to keeping the rule in place and reformers who were frustrated with the obstruction, but unwilling to unravel the little bit of reform they’d managed to attain.
In the end, Russell played the better political game and cornered his fellow senators into allowing rule 22 to be expanded to everything the senate did, such as judicial nominations previously exempted and shifted the requirement of the super majority from two thirds of senators present in the chamber to two thirds of all elected senators, cementing the supermajority requirement at 64 votes. Russell also worked to protect rule 22 from further alterations and put it into a special category, immune from cloture.
If you thought Russell’s action settled the matter, think again. It remained a bone of contention for those looking to change the rules in response to what they saw as unproductive obstruction. Two figures in recent political history fought in their own ways over the rights and use of the filibuster and rule 22, but you may be surprised to see who started where. Richard Nixon and Lyndon Johnson, men who are known for vastly different reasons, were at opposite ends of support for the filibuster, with Richard Nixon as Vice President arguing against Rule 22 and Johnson collaborating with Russell, leaning into the protections of rule 22 to help prevent civil rights legislation and working very hard to prevent any attempts at rewriting the rule.
Lyndon Johnson, most famous for signing the 1964 Civil Rights Act, started out in Congress. While serving as the senator from Texas, Johnson developed a close relationship with Russell and with his support, secured the role of minority leader. Throughout the fifties as senators took aims at reforming rule 22, Johnson deftly knocked them down, going so far as to deny committee assignments to senators from his party who supported any efforts at reforming the rule. This trend continued until Eisenhower was reelected, bringing in a surprising antagonist against rule 22.
In January 1957 at the beginning of the 85th Congress, Vice President Richard Nixon threw a proverbial bone towards those who were looking to reform rule 22 and make it easier to end the debate. Responding to a series of inquiries surrounding whether or not the senate, at the start of a new session, had the right to alter its procedural rules and by extension, overturn or otherwise significantly alter rule 22, Nixon responded with quote: “the right of a current majority of the senate at the beginning of a new congress to adopt its own rules, stemming as it does from the constitution itself, cannot be restricted or limited by rules adopted by a majority of the senate in a previous congress” end quote. In other words, just because a majority of senators approved of rule 22 before, didn’t mean a new majority couldn’t overturn it now.
As excited as reformers were to hear this ruling, it wasn’t as clean a victory as it sounds. The senators had three ways they could handle the decision: open up debate on changing the rules, vote to overturn Nixon’s ruling or table the ruling and move on to other business. Under threat of reevaluating every single senate rule and procedure by the one and only Richard Russell, the senate decided tabling the decision was the best course of action and moved on to other business.
There have been a number of other attempts at reforming the filibuster, including in 1975 where the cloture threshold was reduced from two thirds to three fifths, bringing the magic number to 60. According to an article by the Brennan Center for justice, there have been over two thousand filibusters since 1917. Of those over two thousand, roughly half have occurred since 2009. The more the filibuster is utilized, the less Congress can accomplish since bills now require sixty votes to be considered safe. In an increasingly polarized country, this becomes an ever more challenging hurdle to clear.
Another downside to the increased use of the filibuster is the increase in presidential executive orders. Each time a president takes office and issues these directives, political pundits are all abuzz about how the president is exceeding their authority. While this may be one way to look at it, another way to look at it is no president walks into the office hoping to accomplish nothing. Since major legislation seems to be a pipe dream in our current senate, the only way a president can say they achieved anything, outside of their budget, is to issue executive orders. Since they aren’t bound in law, they are often only temporary and are frequently rescinded once the next president is sworn in.
So how can this be fixed? Well one way would be to alter rule 22 and reduce the threshold to end debate from a super to simple majority. However, that would require 60 senators to sign on and in a chamber evenly divided, there is little hope of securing the required votes to alter the rules. Another option is what is known as going nuclear. It was coined during 2013 thanks to a Washington Post article, but basically it's a process by which the senate majority leader can raise a point of order that cloture can be invoked with a simple majority. Reid opted to go nuclear in 2013 in order to approve a number of President Obama’s nominations to the federal bench and other executive appointments, leaving in place the supermajority requirement for Supreme Court Justice nominations. Of course, that was eliminated in 2017 when Senate Majority leader Mitch McConnell removed the requirement in order to confirm Neil Gorsuch.
Another idea being advocated is bringing back the requirement to have a talking filibuster, wherein the senators seeking to delay or block a bill would have to stay on the floor and actively stop the senate from doing other business. Currently, senators only need to indicate their desire to filibuster a bill without having to hold the floor since the senate operates in what is called a two track system which allows them to focus on multiple bills at once. Repealing this would raise the stakes and, some argue, would make senators think twice before indicating their intent to filibuster.
With only ten major pieces of legislation enacted by the 116th Congress, who ended their two year term in 2021, I think we can all agree something needs to be done.
Thanks again to Kris for suggesting I dive into the history of the filibuster. As always, I learned a whole lot about filibusters and more about senate procedure then I ever thought possible. If you ever have an idea for the pod, please let me know. Your requests are always fascinating and I love what you all come up with. Keep them coming.
You can make a suggestion for pod, find source material and how to support the show via the website at www dot civics and coffee dot com.
Thanks, peeps. See you next week.
Thanks for tuning and I hope you enjoyed this episode of Civics & Coffee. If you want to hear more small snippets from american history, be sure to subscribe wherever you get your podcasts. Thanks for listening and I look forward to our next cup of coffee together.