The History of Filibusters

A comment on my previous post on judicial filibusters made the oft-repeated claim that the filibuster has been used to preclude debate for the entire history of the US Senate (it is also often called a 200 year old tradition). In fact the filibuster is 133 years old, although using it to block legislation goes back only 88 years and using it to block floor votes on judges with majority approval goes back, as I noted before, only to 2003. With the issue likely heating up again this week it is a good time to take a look at the tactic’s history to see how we got where we are today.

From 1789 to 1828, the rule was that the presiding officer of the Senate could cut off debate at any time, which is of course the Vice President (a simple majority of the entire Senate could also end debate from 1789-1806). While this would seem to facilitate abuse of power by either cutting off debate or refusing to do so purely on a VP’s whim, history shows that it was used responsibly in that period.

Unfortunately, and probably inevitably, an abuse of this extraordinary power occurred in 1825. Senator John Randolph of Virginia, who had a longstanding and by most accounts irrational hatred for President John Quincy Adams and his family (think Ted Kennedy and George W. Bush), hijacked the floor every day for three months to launch a series of vicious (and often personal) attacks on both the president and Secretary of State Henry Clay. The VP was South Carolinian John C. Calhoun, and because he had presidential aspirations of his own he was perfectly willing to let the attacks on his two main rivals for the 1828 election continue unabated. This was the genesis of what would later become the filibuster, and Calhoun himself would later use this early form of the tactic to protect slaveholding interests.

This abuse of power, ironically in the form of inaction, led to rules changes in 1828. While the VP still had the power to cut off or allow debate, his decisions could now be appealed to the entire Senate. And a rule of relevancy was added, cutting off for a while the kind of speeches that would later become commonplace, famously including Huey Long’s reading of Cajun recipes.

The next major change, and what officially created the filibuster, was the 1872 ruling by VP Schuyler Colfax that the presiding officer could not stop debate if it was pertinent to the pending matter. This led to a period where the filibuster was used responsibly by the senators of the era to achieve important compromises on legislation. Alas, theoretically allowing unlimited debate on a question was still a ticking time bomb, and within half a century it would explode.

And so it was that in 1916 the filibuster was first used to thwart the will of the majority. In this case, it was when a group of progressive liberals known as “The Willful 11” began to systematically use the filibuster to block any action that might lead us closer to entering the Great War (now World War I), despite escalating German U-boat attacks on US ships. The danger inherent in a minority blocking the will of the majority during a time of national crisis led to the first cloture rule (Rule XXII) in 1917, whereby 2/3 of the senators “present and voting” could end debate.

Thus began a period when a relatively insignificant minority could legitimately stifle legislation by the use of an endless filibuster, and that they did, most notably in the area of civil rights. By 1949, in the wake of the blockage of Federal bills against lynching and against a discretionary poll tax, an effort was undertaken to reduce the supermajority needed for cloture, but it failed in spectacular fashion – by the time the dust settled, it required 2/3 of the entire Senate instead of 2/3 of those present at any time to end debate.

Despite repeated attempts to ease the cloture rules from 2/3 to a simple majority or to institute a two-tiered system, it remained as it was throughout the 1950’s and into the 60’s. Civil rights legislation was repeatedly blocked, most famously when Democrat Strom Thurmond held the floor for 24 hours in 1957, a record length of time that still stands. Finally, in 1964, the tide of support for equality was too great and the seminal Civil Rights Act was passed – but not before it had been filibustered for two and a half months by a group of 18 Democrats and one Republican.

Senate Democrats eventually dropped the cloture threshold from 2/3 to 3/5 in 1975 after a contentious 7-week debate. And in 1995, Senator Tom Harkin (D-Iowa) proposed a 4 step declining threshold for cloture, ending in a simple majority, but it was defeated.

You probably notice in the above history that there is no mention of judges, and there is good reason. Before 2003, there was never a filibuster of a judicial nominee who had majority support, and before 2003 there was never even once a filibuster of a lower court judicial nominee.

And no, to answer a common objection, Abe Fortas does not fit into this argument. He was a Supreme Court justice who was nominated for Chief Justice in 1968 by LBJ but was filibustered by 24 Republicans and 19 Democrats amid ethics charges – he had lied to the Senate Judiciary Committee and had improperly accepted money from clients and partners in the guise of payment for some college lectures. He asked that his Chief Justice nomination be withdrawn, and after yet another scandal broke when it was discovered that he accepted other illegal payments while already a member of the Supreme Court, he resigned from the Court. That the best defenders of the new practice can do is to dredge up a scandal-ridden Justice who had to resign to avoid impeachment shows how weak their case really is.

In summary, what we have here is a de facto attempt to rewrite the Constitution to require a supermajority to confirm judicial appointees by systematically using a heretofore-unprecedented tactic. Democrats seem to feel they will be a minority party for a long time and think they have found a procedural loophole to circumvent the will of the people. Republicans want to close that loophole, as is certainly their Constitutional right. How it will play out will be very interesting, and it will likely come soon.