The Odd History of the American Filibuster

Over at The Washington Post this morning, Ezra Klein offered some thoughts on a recent Monkey Cage post by Gregory Koger, a congressional expert at the University of Miami, regarding the importance of the filibuster. In light of Senate's convoluted health-care-reform discussions, the filibuster an interesting topic to ponder. As someone who grew up outside of America,I've always considered the 60-vote filibuster-ending (cloture) rule a puzzling quirk of the U.S. system. I've been further perplexed by the attachment that Americans appear have to this arcane procedure. In discussions with friends, they often confidently assert that the cloture system is an integral component of the Founding Fathers' vision for the legislature. Really? They imagined minority-party obstructionism and governing by filibuster? (The word "filibuster" actually wasn't even used until the 1850s.) While I fully appreciate the role of the Senate as the "cooling saucer" of the legislative branch─a slower, more deliberative body than the House─I'm unconvinced that allowing 41 members to derail policies by threatening to talk endlessly is the most desirable mechanism for achieving that goal. And upon looking into it further, it doesn't appear that was an intentional element either.

In the Harvard Journal of Law and Public Policy, constitutional scholars Martin Gold and Dimple Gupta argue just that the contemporary filibuster wasn't part of the original concept for the Senate. "The possibility that a minority of Senators could hold unlimited debate on a topic against the majority's will was unknown to the first Senate," they write. Indeed, the U.S. filibuster came about by accident. In 1806, when Vice President Aaron Burr re-codified the Standing Rules of the Senate, he argued that a procedural tactic for limiting debate─a motion to vote on the previous question─had rarely been used and was therefore unnecessary. Not having a method to cut off debate didn't seem controversial at the time. It was the long accepted practice of the gentlemanly Senate to allow each member sufficient time to speak before a vote. Even if it was clear a bill would fail, proponents were given the courtesy of making their case for the record. Such was the dignified nature of the early Senate. But by removing a device for restricting debate, and not replacing it with another, Burr inadvertently created the opportunity for a filibuster.

The first filibuster didn't occur until the 1830s, and since then multiple attempts have been made to curtail its use. In 1917, Woodrow Wilson urged the Senate to adopt a cloture rule that require the consent of two thirds of members to cut off debate. It was first invoked two years later to end a filibuster against the Treaty of Versailles. In 1975, the threshold for cloture was reduced to three-fifths, which equates to the magic number 60. These days, both sides of the aisle well know that without those 60 votes, legislators can and will find creative ways to sneak legislation through the budget reconciliation process, where just a simple majority is required.

Many political systems across the world─including the U.K., Canada, Australia and France─provide for filibustering, but they require members to actually enact the filibuster (that is actually the endless talking) so they are used very rarely. But in the U.S. Senate, the mere threat of it can stall the legislature, which in effect makes it the only legislative body in the developed democratic world that requires a three-fifths majority to bring bills to a vote. Right now the Democrats, despite having won a substantial electoral victory, watch important legislation get picked apart, shaved and remodeled to satisfy the desires of a handful of members; to get that critical 60. The result is policy doesn't reflect the majority wishes of either party, but appeals to a small but powerful few in tricky electorates. The question that Koger's comprehensively argued defense of the filibuster doesn't effectively answer is whether the legislative process the 41-vote filibuster has spawned is a good way to create public policy. There are many other ways to prolong debate on an issue, like multiple amendments, roll-call votes and holds. Are the policy outcomes any better because we need 60 votes? I'm not so sure they are.