The filibuster may be a national issue, but it feels local: radio listeners frequently call our radio show about it, and I've seen many “Sound Off” comments on it, some of which are just plain wrong. So let me mention some facts.
The filibuster is not in the U.S. Constitution. Thomas Jefferson didn't invent it. The first U.S. Senate, in 1789, adopted rules letting the Senate end debate on a bill and vote immediately by “moving the previous question.” No filibuster. However, the Senate (and in those days the House) believed in unlimited debate. Thus the motion to move the previous question was rarely used. At Aaron Burr's urging, the Senate in 1807 eliminated that motion. Since the Senate didn't adopt some other mechanism to shut off debate, the change left open the possibility of a filibuster.
The word itself derives from a Dutch word meaning “pirate.” It refers to taking control of the Senate floor and holding it.
The first filibuster occurred in 1837. In 1841 the Democratic minority used it to oppose a charter for the Second Bank of the United States. Senator Henry Clay tried to end the debate with a majority vote. Senator William King threatened a filibuster, telling Clay to make arrangements at his boarding house for the winter. Other senators sided with King, and Clay backed down.
Strom Thurmond's 24 hour filibuster against the Civil Rights Bill of 1957 is the longest filibuster on record. In the 1930's, Huey Long used the filibuster against bills he thought favored rich over poor. In Frank Capra's Mr. Smith Goes to Washington, Jimmy Stewart exhausts himself in a filibuster --- and we're all rooting for him.
During the 1950's and early 1960's it was a given that southern Senators would vote against (and filibuster) civil rights legislation, even anti-lynching laws. Some Senators were racists. Some were reasonable men on other subjects, and not particularly racist, but understood that re-election required such conduct. One, J. William Fulbright of Arkansas (for whom Fulbright Fellowships are named), became a world-renowned expert on foreign policy, did much good work during his 30 years in the Senate, and probably wasn't particularly racist, but knew that voting against such legislation was a toll he had to pay if he wanted to keep returning to the Senate every six years.
The rules on filibusters have changed before. In 1917, at President Woodrow Wilson's urging, the Senate adopted Rule 22, allowing the Senate to end a debate with a two-thirds majority vote. This was called cloture. Cloture was first used in 1919, to end a filibuster against the Treaty of Versailles, which formally ended World War I. In 1975, the Democratic majority changed the cloture rule to require only three-fifths of the senators sworn (60, usually) could limit debate, except on votes to change the rules.
In short: the filibuster wasn't “set forth by our founding fathers” but is a procedural rule that developed in a random sort of way. Although either party, when in the majority, could probably have changed the rule at any point, neither did, presumably both honoring tradition and recognizing that the majority might soon become the minority party.
So far, so good. Although I recall as a kid my distaste for the southern senators' filibusters, which delayed civil rights, the filibuster is arguably a useful provision to enable the minority to delay or defeat (or at least make the majority think longer about) a particularly offensive bill.
Filibusters of judicial or executive branch Presidential appointments were even rarer than other filibusters. Such filibusters have occurred something like182 times in our history, and just more than half that total (92) were Republican filibusters during the Obama administration, In eight years, only about a dozen Bush judicial nominees faced filibusters. I haven't personally checked those numbers; but clearly the Republicans during 2009-2013 have used the maneuver far more than any other group of Senators. (They had even announced this year that they would filibuster any Obama nominee to the Federal Circuit Court of Appeal. One prominent Senator even apologized to a nominee, telling him it wasn't about the nominee,)
In 2005, when Democrats threatened to filibuster some judicial nominations by George W. Bush, Republicans floated the idea of having V.P. Dick Cheney, the President of the Senate, rule that filibusters of judicial nominees were unconstitutional. Compromising, the parties agreed that except under “extraordinary circumstances,” judicial nominations would not be filibustered by either party.
The Democrats seem to have kept that agreement.
The Republicans unquestionably didn’t. Their extreme over-use of filibusters abused the right.
Republicans can't fairly complain that the Senate responded by changing the rule (as to executive nominees and judicial nominees below the Supreme Court level) in response.
They can point out that the Democrats, when next in the minority, may rue the change; but the Dems had little choice; and since Republicans could have done the same thing when next in the majority, it's hard to see how failing to change the rule now would have protected the Democrats' rights as a minority later.
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[This column appeared today, Sunday, 8 December, in the Las Cruces Sun-News.]
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