Monday, January 23, 2006

Gold and Gupta: Creation of the Filibuster

A. The “Dignified 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. The original Senate Rules — then only twenty in number — allowed a Senator to make a motion “for the previous question.” This motion permitted a simple majority of Senators to halt debate on a pending issue:
The previous question being moved and seconded, the question for the chair shall be: “Shall the main question now be put?” and if the nays prevail, the main question shall not then be put.

This motion was a well entrenched tradition among legislatures of the time: It had been recognized by the British parliament since 1604, by the Continental Congress, and by the House of Representatives, which still observes it to this day. Today, the previous question motion is generally understood as a method for cloture; that is how it functions in the House of Representatives and the British Parliament where, if passed, it stops debate and forces “an immediate, final vote” on the pending proposal. How the motion functioned in the early years of the U.S. Senate is the subject of dispute. Some have argued that the motion served as an early cloture device, allowing “a majority of Senators present” to end “instantly” all debate and force a vote. Others have argued that it was used as a mechanism to delay consideration and not as a cloture device. As Senator Clifford P. Case (R-NJ) explained, the evidence is inconclusive for the simple reason that neither the concept nor the practice of filibustering to prevent majority rule existed in the early U.S. Senate:
The fact is that so-called unlimited debate in the Senate is a myth. History shows clearly that up to the time of the Civil War majority of the Senate, under its rules and precedents, and under the dignity of its customs, did have the authority to, and for the most part effectively did, limit debate and prevent filibusters . . . . There may be exceptions, but the truly representative picture of the Senate before the Civil War, as shown by our historical records, is that the body observed dignity and restraint in debate, and did not consider talking to consume time a parliamentary instrument appropriate for the Senate . . . . [T]he filibuster as a device, not merely to delay, but to prevent, action is a modern institution which has no support or sanction in early Senate history and practice.” So strong was this tradition of a “dignified Senate,” that there were no filibusters until the late 1830s.

B. The Inadvertent Creation of the Opportunity To Filibuster It was against this backdrop of limited debate that Vice President Aaron Burr, in 1806, approached the previous question motion. 1806 marked the first re-codification of the Standing Rules of the Senate. As then-Senator John Quincy Adams reported, Burr advised that the motion for the previous question was of no use and should be dropped:
[Burr] mentioned one or two rules which appeared to him to need a revisal, and recommended the abolition of that respecting the previous question, which he said had in the four years been only once taken, and that upon an amendment. This was proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement.”

The Senate followed this advice but failed to impose any other device by which debate might be restricted. Thus, by sheer oversight in 1806, the Senate opened itself to the possibility of filibuster.

C. The First Filibusters
With no previous question motion available, a minority could hold unlimited debate and prevent a vote on any debatable proposition. It was not until the late 1830s, however, that a group of Senators attempted to do so.

Disputes over the Bank of the United States brought on two of the earliest filibusters. In 1834, the Senate had formally censured President Andrew Jackson for withdrawing federal deposits from the Bank of the United States. Jackson’s supporters were unrelenting in their efforts to erase the censure, and between 1835 and 1837, six state legislatures replaced their Senators with men who promised to remove it. In 1837, a group of Jacksonian Senators moved to expunge the censure from the Senate Journal. “Opponents talked and talked.” “It was evident that consumption of time, delay and adjournment, was their plan,” Senator Thomas H. Benton (D-MO)
reported. In response, Jackson’s supporters prepared for a long night, “fortif[ying] themselves with an ample supply, ready in a nearby committee room, of cold hams, turkeys, beef, pickles, wines, and cups of hot coffee.” The filibuster was short lived: Near midnight the opposition gave way, the Senate passed the expunging
resolution 24-19, and the anti-Jackson Senators stormed out of the Senate before the expunging could be completed.

Whether it was a sense of the dignity of the Senate or sheer exhaustion that ended the 1837 filibuster, by 1841, the tolerance for unlimited debate had declined and the Senate began a long history of attempting filibuster reform. On June 21, 1841, Whig Senator Henry Clay (W-KY) reported a Fiscal Bank Bill to the Senate, designed to
establish the National Bank that Andrew Jackson had thwarted. When Senator John Calhoun (D-SC) made it clear that the Democratic minority would not be rushed, Clay called for a revival of the previous question motion “to allow a majority to control the business of the Senate.” When Senator William King (D-AL) asked if Clay planned to introduce a gag measure, Clay retorted, “I will, sir; I will.” King made clear his intention to filibuster such a proposal: “I tell the Senator, then, that he may make his arrangements at his boarding house for the winter.” At the insistence of his own party, which feared that a “gag measure” would lead to a break down in
relations, Clay stood down. Clay agreed to compromise, and the bill passed the Senate on July 28.

The practice of filibustering grew in the last half of the 19th century. Four times Senators unsuccessfully attempted filibuster reform—in 1850, 1873, and 1883 by moving to add a previous question motion to the Standing Rules, and in 1890 by attempting to create a cloture precedent through majority vote. It was not until
1917 that the Senate adopted a cloture rule.