Tuesday, November 08, 2005

The filibuster

I think it's time we all agreed to stop perpetuating the myth that the filibuster was one of the greatest inventions of our nation's founding fathers and that it's a tool designed to protect minority interests. The filibuster is an historical accident, and in its current form dates only to 1917.

Article I, section 5 of the Constitution says that "[e]ach House may determine the rules of its proceedings." The first Senate rules were adopted by a majority vote of the first Congress in 1789. There were 19 rules at the time, and they have been modified periodically over the last 216 years. Presently there are 43 Standing Rules.

The original Rule VIII defined the privileged motions; privileged motions may be made at any time and, if they receive a second, they are immediately voted upon. Among the privileged was a motion "for the previous question" -- that is, a motion to vote on the issue being debated. If this motion was approved by a simple majority, the debate was ended and a vote on the "main question" was taken. This was a common rule at the time -- it had been used by the British parliament for a few hundred years, the Continental Congress, and the House of Representatives. (The House still uses it today; Rule XVI(4)(a) identifies a motion for the previous question as being subordinate only to a motion to adjourn and a motion to table an issue.)

In 1806 the Standing Rules of the Senate were revised for the first time. Aaron Burr was then the Vice President, and in his capacity as the President of the Senate recommended that the motion for the previous question be abolished. He could see no use for it, as it had only been used only once during his tenure, and even then it was only used on an amendment to a bill. The Senate adopted Burr's revisions to the Rules without adding any provision to limit debate. At no point did the Senators discuss (or even appear to recognize the possibility of) a "right to filibuster." They simply overlooked the fact that they no longer had a tool to end debate and force a vote.

History supports this conclusion. The first filibuster didn't occur for more than 30 years after removing the motion for the previous question, and filibusters were rare until the post-Civil War era. Moreover, the Senate tried to reinstate the motion for the previous question four times in the latter half of the 19th century. During this period the only way to force an end to debate was by compromise, by relinquishment of the floor, or by adjournment.

The modern filibuster dates only to 1917 -- a scant 88 years ago, hardly the era of our founding fathers -- when the Senate adopted a cloture rule allowing a supermajority of the Senate to end

What's the point of all this? The point is that the filibuster is not the invention or the intention of the founding fathers. You are free to accept or reject the policy arguments in favor of or against the filibuster, of course, but to claim that doing away with the filibuster (or "going nuclear," so to speak) is unconstitutional, or that the filibuster should be retained because "that's the way we've always done it," or because "that's what the founding fathers intended" is not only illogical but not grounded in fact.

I'm sure there are a number of places you can read up on the real history of the filibuster, but this paper (PDF) from the Harvard Journal of Law & Public Policy gives a nice summary of the facts.


Kat said...

Not necessarily related to your post, but PubSub has created four Community Lists (http://www.pubsub.com/lists/), one of which happens to cover legal blogs (and another of which is librarian blogs, which is how I found it). Anyway, The Law List contains the "better legal blogs" so perhaps you'll find some interesting reading there....

trotskey said...

Thanks for your well-reasoned post Nye, but perhaps we should wait to do away with the filibuster until the government isn't run by a bunch of reprehensibly dishonest and psychotic assholes.

Nye! said...

I'm not sure I'll live to see that day, my friend.