On the History of the Filibuster
Dana Milbank has a column that is quite critical of Mitch McConnell’s, shall we say, “flexibility”: Mitch McConnell, the man who broke America.
First, the headline (which comes from the text of the column, so can’t be blamed on whomever it was that named the piece) is a bit much. McConnell owns a huge share of responsibility for recent politics, to be sure. His prominence in leadership of the Senate GOP makes him responsible by definition. But the current era of political polarization is bigger than McConnell. And, to be fair (I know, who wants to be fair in politics?), obstructionism, or even situational flexibility are not , per se, out of bounds in politics. Indeed, they are often necessary tools of the politician.
Further, doing away with the filibuster, even the legislative filibuster, is not the breaking of America (as if the essence of the US is the protection of minority obstructionism in the Senate).
Second, having said that: I think that the criticism of McConnell’s cynicism is fair insofar as his hypocrisy on the filibuster issue is quite stark.* Further, his immediate reaction to the death of Scalia and his subsequent treatment of Garland was a major breach of the norms of US politics.
Nonetheless, third, this bugged me from Milbank:
In the current cycle of partisan escalation, it’s only a matter of time before the filibuster is abolished for all legislation, killing the tradition of unlimited debate in the Senate dating back to 1789. The Founders did this so minority rights would be respected and consensus could be formed — and McConnell is undoing it.
There is currently a good deal of situational romanticizing of the filibuster at the moment. We have here an appeal to the “The Founders” and to the very origins of the Senate. But this is not accurate.
To wit, Sarah Binder, who is an expert on this very topic, provided the following in testimony before the US Senate Committee on Rules and Administration in 2010:
We have many received wisdoms about the filibuster. However, most of them are not true. The most persistent myth is that the filibuster was part of the founding fathers’ constitutional vision for the Senate: It is said that the upper chamber was designed to be a slow-moving, deliberative body that cherished minority rights. In this version of history, the filibuster was a critical part of the framers’ Senate.
However, when we dig into the history of Congress, it seems that the filibuster was created by mistake.
Spoiler: it was Aaron Burr’s fault. He recommended that the motion to call the question be removed from the rule book as part of a cleanup of the rules. Without the ability to call the question, discussion on an issue can theoretically go on forever. Anyone who has ever operated in an environment using Robert’s Rules knows the value of being able to call the question deep into a long afternoon meeting (especially, ironically enough, in a meeting of the Faculty Senate).
Once the rule was gone, senators still did not filibuster. Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate. It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837.
And from her conclusions:
the history of extended debate in the Senate belies the received wisdom that the filibuster was an original, constitutional feature of the Senate. The filibuster is more accurately viewed as the unanticipated consequence of an early change to Senate rules.
As such, one can see that Milbank is simply incorrect to romanticize the intent of the Founders in all of this (and Milbank isn’t alone).
I would recommend the entire piece, which also includes the secret origin of the cloture rule: The History of the Filibuster. And if one wants more, I suggest Binder’s book on the subject (as well as her other work).**
Part of the lesson here is that institutional rules change over time, and they often do not change as the result of some grand plan. And even when there is a plan, the exact implications of the change are not always fully known. Aaron Burr had no idea what his suggestions to cleanup the rules of the Senate would create. And, I would hasten to add, even if he did, the fact that he was, broadly cast, one of the “Founders” does not make his choices unassailable or wise.***
BTW: I am largely in favor of the utter removal of the filibuster insofar as I do not see the usefulness of allowing the minority to have that much power (especially since the nature of the manuever was such that a lone Senator could gum up the works by threatening s filibuster–this was far more a procedural maneuver than it was some grandiose exercise in deliberation). Indeed, too many people have their view of the filibuster linked to tales of heroism by Jimmy Stewart than they do actually understanding of Senate rules.
I will admit that the one area where I might could be persuaded of the need for a super-majority might be for SCOTUS nominations, given the significance of the institution and the fact that their terms are for life. Further, it is possible for the minority of citizens to have power in the Senate due to the anit-democratic distribution of seats in the chamber, which has implications for naming a Supreme Court Justice in the sense of empowering national minorities on this topic. Having said that, such a rule would have to be in the constitution itself, not subject to the alteration by the majority party of the chamber. And, having said all of that, the reality is that winning the White House and the Senate empowers a given party to act (elections having consequences, and all that).
The interesting thing is going to be: what happens the next time we have divided government between the White House and the Senate? I am guessing that we will see some more long vacancies on the Court (and this is because of the Garland precedent, not the elimination of the filibuster). For example: if the Democrats win the Senate in 2018, and Trump gets a nominee any time in his last two years in office, the chances of a loooong vacancy strike me as high. In reality, since the majority had the nuclear option at their disposal and the political context that would allow it use, the filibuster was dead for SCOTUS nominations well before the actual vote took place.
*Not that anyone in the Senate has covered themselves with glory in terms of consistency on this topic.
**See, also, Kroger, Gregory. 2010. Filibustering: A Political History of Obstruction in the House and Senate. University Of Chicago Press.
***Seriously, Burr did a lot of things that I would suggest are not worthy of imitation.