Let’s Get Our Filibuster History Right

Sen. Kyrsten Sinema last week claimed the Senate filibuster “was created to bring together members of different parties to find compromise and coalition.”

Sinema’s statement is not historically accurate.

New York magazine’s Jonathan Chait, a filibuster critic, charged Sinema with pushing “a version of this fake history” as part of an “extraordinarily effective propaganda campaign” by filibuster proponents. He countered, “The filibuster emerged in the 19th century not by any design, but … due to an interpretation of Senate rules which held that they omitted any process for ending debate. The first filibuster did not happen until 1837, and it was the result of exploiting this confusing rules glitch.”

Chait’s statement is not historically accurate.

In his anti-filibuster book, “Kill Switch,” former Senate aide Adam Jentleson declared that “Southern senators”— both antebellum pro-slavery and post-Reconstruction segregationist senators — “invented the filibuster,” and stated that “[i]n the eighty-seven years between the end of Reconstruction and 1964, the only bills that were stopped by filibusters were civil rights bills.”

Jentleson’s statement is not historically accurate either.

Getting our filibuster story straight is difficult because the history is murky and everyone trying to tell the story has an angle. This includes me, but I shall do my best.

Let’s start at the beginning. The filibuster wasn’t invented by Southern senators. It wasn’t even invented in America. The credit should go to the senators of the Roman republic. Actually, one in particular.

The Romans had all sorts of obstructionist tactics, as historian Adam Lebovitz has detailed. One was obnuntiatio, breaking up a legislative session because of a bad omen, which could be done disingenuously. Plutarch wrote of an episode in which “Pompey lyingly declared that he heard thunder, and most shamefully dissolved the assembly, since it was customary to regard such things as inauspicious, and not to ratify anything after a sign from heaven had been given.”

Another was talking until nightfall when meetings ended, which was not called “filibuster” but diem consumere, to consume the day. Cato the Younger was the most famous practitioner of diem consumere. His biographers  Rob Goodman and Jimmy Soni go as far as to state, “The history of the filibuster … essentially starts with Cato.”

Cato’s stemwinders — he could “speak at the top of his lungs for hours” — were wielded for populist ends. He waged a successful six-month campaign to prevent Rome’s private tax collectors from jacking up their rates. He prevented Pompey, a general, from steering precious land to his troops. And spotting a threat to the Republic itself, with just a one-day talkathon, Cato denied Julius Caesar the ability to have a military parade in his honor while also running for political office.

Caesar would soon seize autocratic power, and Cato would commit suicide rather than live under Caesar’s rule. Goodman and Soni argue Cato’s obstructionism — however high-minded — was a contributing factor to the Roman Republic’s collapse. America’s Founding Fathers, however, idolized Cato. George Washington’s soldiers staged a play about Cato at Valley Forge. Patrick Henry’s famous quote, “Give me liberty or give me death,” is derived from a line in that play.

Filibuster critics correctly note that the tactic was not established in the Constitution nor was it codified in the initial congressional rules. But if the Founders feared the emergence of a Cato in their republican experiment, they could have explicitly banned diem consumere. They didn’t.

Granted, Thomas Jefferson wrote a rules manual that informally guided the early Senate, and he instructed, “No one is to speak impertinently or beside the question, superfluously or tediously.” However, legal scholars Catherine Fisk and Erwin Chemerinsky inform us that “such debate occurred” anyway. They also note, “It is not clear … whether extended debate with dilatory intent was considered an established practice at this point, or … the bad habit of a few persons.” Still, if the first congressional majorities believed that dilatory tactics were meant to be banned, they would have tightened up the rules at the first sign of violation.

Chait, citing work by filibuster historian Sarah Binder, placed the first American filibuster in 1837 — when the Whigs tried to stop the expunging of Andrew Jackson’s censure from the congressional record. But Fisk and Chemerinsky determined that “the strategic use of delay in debate is as old as the Senate itself,” and they found the “first recorded episode of dilatory debate” occurred in 1790 “when senators from Virginia and South Carolina filibustered to prevent the location of the first Congress in Philadelphia.” One senator who favored the Philadelphia bill recounted, “The design of the Virginians and the Carolina gentleman was to talk away the time, so that we could not get the bill passed.”

Chait’s mention of filibusterers “exploiting this confusing rules glitch” is a reference to Binder’s argument that, in 1805, Vice President Aaron Burr inadvertently opened the door to filibustering when he recommended cleaning up the Senate rulebook and removing unnecessary provisions including the “previous question motion.” In Binder’s telling, “today, we know that a simple majority in the House can use the [previous question] rule to cut off debate. But in 1805, neither chamber used the rule that way.” So the Senate got rid of it, not realizing its absence would allow senators to filibuster in the future.

But another filibuster historian, Gregory Koger, recently debunked the Burr origin story. He noted that in much of the 19th century the House had filibusters — more than the Senate in fact — even though it kept the “previous question motion” on the books.

What’s confusing is that the “previous question motion” was interpreted differently by the House at different times. It wasn’t initially used to cut off debate. Then in 1811 it was, but in subsequent years it wasn’t routinely used in that fashion. Not until the late 19th century were House procedures broadly and comprehensively reformed to greatly empower the majority and quash dilatory tactics.

The House history of the “previous question motion” speaks to Koger’s main point: “the meaning of rules is determined by legislative majorities, even if this means completely reversing the traditional interpretation of a term.” In other words, any majority can interpret the rules however they want, whenever they want.

Chait looks to the Burr story to argue the filibuster “emerged accidentally” because “nobody ever would create a system like this on purpose.” But Koger counters that “Senators have always had the power to determine what their rules mean, so they have always been able to limit or eliminate filibustering if a majority of the Senate is ready to vote for reform.”

Remember, in the past decade, narrow Senate majorities have limited the filibuster, deploying the so-called “nuclear option” to eliminate the filibuster for judicial and executive branch appointments. Koger concludes, “[I]f a bare majority can end the filibuster now, then this has always been true, and there is no proof that their path to success would be easier if they had a [previous question] motion. For advocates of Senate reform, this poses an awkward truth: the Senate filibuster has persisted to this point because lots of senators have supported it.”

Case in point: When senators grew tired of the 20th century talking filibusters, they didn’t abandon the parliamentary tool, they reformed it.

Filibusters gummed up the floor, preventing any other work from getting done. So, as Binder explained this year in The Washington Post, “Majority leader Mike Mansfield (D-Mont.) in 1970 suggested that the Senate invent a second ‘shift’ or ‘track’ of legislation. When a filibuster blocked the first track, Mansfield simply asked unanimous consent of all 100 senators to set aside the filibustered measure and move onto a new bill on a different ‘track.’ Mansfield’s change did not require the Senate to make a formal change in its rules. All he really did was ask for consent to start tracking. Party leaders on both sides of the aisle thought tracking would help them make the floor schedule more predictable.”

The two-track system is the current system. It is a system that allows for easily executed “silent” filibusters. It is a system created on purpose.

In Jentleson’s story, the senators who supported the filibuster were racists. Of course, there’s no disputing that for decades Southern segregationists weaponized the filibuster to protect racist Jim Crow laws. But Jentleson overstates the case when he claims that “between the end of Reconstruction and 1964, the only bills that were stopped by filibusters were civil rights bills.” Binder and Steven Smith, in their 1996 book “Politics or Principle? Filibustering in the United States Senate,” identified “twenty-six measures” proposed between Reconstruction and 1994 “that would directly change public law” that were “clearly killed because of the ability of a minority of senators to prevent action.” Only nine of those 26 were related to civil rights. And before 1949, “the number of non-civil rights measures blocked by filibuster [was] about as large as the number of civil rights measures killed by filibuster.”

Jentleson and others (including Barack Obama) want to claim that the filibuster is defined by Jim Crow to argue that it has “mainly served to empower a minority of predominantly white conservatives.” But the filibuster is a tactic with no inherent ideological disposition. Cato used it against the authoritarians and plutocrats of his time. As the Civil War neared its close, the Radical Republicans (aided by Democrats) launched a successful filibuster thwarting President Lincoln’s plan to admit the government of Louisiana back in the Union, because Louisiana had not yet given Blacks the vote. In this century, President George W. Bush began his second term with a major push to partially privatize Social Security, but when the Senate Democratic minority made clear it had the votes for a filibuster, Bush had no choice but to stand down.

Just as supporters should not pretend that the filibuster was created to produce bipartisan harmony, critics should not pretend that the filibuster is both a historical accident and a linchpin of systemic racism. Let’s tell the true story of the filibuster, not a pat story that serves the ideological purpose of one side of the debate, but the messy convoluted story that reminds us democracy has always been difficult to maintain.

The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.

Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show “The DMZ,” and host of the podcast “New Books in Politics.” He can be reached at [email protected] or follow him on Twitter @BillScher.

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