Poor Aaron Burr can’t seem to catch a break. First, he is cast as the villain in Lin Manuel Miranda’s play, “Hamilton.” Then, scholars discover he is responsible for the filibuster. Yes, the very same Aaron Burr.
It seems that the original rules of the Senate provided that senators could close debate by moving the previous question. Under those rules, debate could be closed by a majority vote of the Senate. However, the motion was used only once while Burr presided over the Senate as vice president, so he casually suggested that when the Senate revised its rules, they should omit the motion for previous question, as it had only been used that measly one time.
So, in 1806, the Senate removed the rule regarding previous questions, which opened the floor to unlimited debate—a.k.a. the filibuster.
The filibuster is not in the Constitution. It was not allowed in the British Parliament after 1604 and thus was not part of the laws existing at the time of the American founding. It is a creature born of an accidental omission from the rules.
A Short History of the Filibuster
In keeping with its inauspicious birth, the procedure was not used until 1837, when a group of pro-Jackson senators sought to expunge President Jackson’s censure from the Congressional Record (Jackson had been censured by the Senate for removing federal deposits from the National Bank). The anti-Jackson senators filibustered until midnight, but were persuaded to stand down and let the measure pass (although they walked out).
In 1841, Henry Clay tried to abolish it.
There were few filibusters in the nineteenth century, despite the intense partisanship of the era. In 1917, Sen. Robert LaFollette led a group of 11 senators on a filibuster of the Armed Ship Act, which would have armed U.S. merchantmen following the sinking of the Lusitania. President Wilson castigated them as a “little group of willful men” and demanded that the Senate adopt a rule to prevent filibusters. It did, resulting in rule XXII, which allowed the Senate to close debate (“cloture”) by a vote of two-thirds of those senators present and voting.
Of course, those of a certain age and film buffs associate the popular image of the filibuster as Jimmy Stewart in “Mr. Smith Goes to Washington.” In that film, Stewart’s passionate Sen. Jefferson Smith holds the Senate floor in defense of the “little guy” against entrenched special interests.
It made for great cinema. It was nominated for 11 Academy Awards, screened by the National Press Club for its 1939 opening night in Washington DC, panned as anti-American and pro-Communist, and banned in Hitler’s Germany, Mussolini’s Italy, Franco’s Spain and Stalin’s Russia.
But the Filibuster Isn’t Scripture
The real-life version of that cinematic portrayal was Sen. Strom Thurmond holding the floor for 24 hours to defeat the 1957 Civil Rights Act. In the ’20s, ’30s and ’40s, filibusters were used to defeat anti-lynching bills and other civil rights legislation.
The filibuster has been reformed, modified, expanded and contracted over the years. It has and has not included presidential nominations and judges, motions, legislation, and treaties. Cloture has variously required a vote of two-thirds of the body, two-thirds of those present, and three-fifths of the body. It has come a long way from the original rules of the Senate, which allowed debate to be closed by a simple majority vote.
As we consider the filibuster in light of the nomination of Neil Gorsuch to the Supreme Court, we should keep in mind its history. The filibuster is not in the Constitution. The filibuster was not part of the original rules of the Senate. The filibuster and the rule on cloture have been changed many times throughout U.S. history. Perhaps the Senate should consider changing once more and returning to our constitutional and procedural roots. It is time to abolish the filibuster.