Founding Fathers
There is a traditional story of a conversation between George Washington and Thomas Jefferson. It went like this:
“Why,” asked Washington, “did you just now pour that coffee into your saucer, before drinking?” “To cool it,” answered Jefferson, “my throat is not made of brass.” “Even so,” rejoined Washington, “we pour our legislation into the senatorial saucer to cool it.”
True or not, the conversation aptly describes the Founding Father’s view of the “upper” branch of the legislature. The House of Representatives is directly elected by the people every two years. Here is where the “hot passions” of the masses would be heard. But the Senate, originally appointed by the state legislatures, not elected directly by the people, would slow those passions. It would allow the deliberate “cooling” in creating the laws.
From the beginning the Senate was “privileged”. The Senators did not have to “run” for office. Each state had two, there was no difference between Delaware and Virginia (or Rhode Island and California). And they served for six years, three times longer than their House brethren. So the pace and attitude of the Senate was bound to be different. The Senate chamber became a place for debate and discussion, for parsing the issues, rather than just voting.
Hold the Floor
A filibuster is when a Senator takes the floor to speak, and refuses to give the floor up. When this happens, the Senate can no longer do any other business. The Senator “on the floor” can hold it as long as he or she is able to physically do so. However, that Senator can “yield” to another Senator, who can then “yield back” to the original. So if several Senators want to hold the floor and prevent any other Senate business for going on, they can.
This gives a minority of Senators the ability to prevent any legislation they don’t want. It pits them against the majority, a “confrontational move” in that “privileged body”. And for the majority, the only original recourse they originally had was to wait them out, or agree to move onto a different topic.
But there wasn’t a “filibuster” rule in the original Senate. In fact, the House and the Senate both had rules to end debate (cloture) by a simple majority vote. The concept of the filibuster came from an inadvertent change in the rules by Vice President Aaron Burr (Burr again?). In 1805 he removed the rule to end debate in order to “clean the rules up”. Even after that though, the Senate “operated” by a majority rule to end debate. It wasn’t until 1837 that the first “filibuster” actually occurred.
Tyranny of the Majority
John C Calhoun, a leading defender of slavery and Senator from South Carolina, put forward great theories about the “rights” of the minority. Calhoun saw the future, when the slave owning states would be in the minority in the nation, and in the Senate. He wanted to make sure that the “tyranny of the majority” was not enforced on his South. More exactly, he wanted to maintain slavery and the lifestyle it allowed, regardless of how many “votes” he had.
The filibuster was one tool Calhoun used to prevent the so-called tyranny of democracy – majority rule.
After the Civil War, the filibuster in the Senate became the primary tool to “protect” the “rights” of Southern whites to discriminate against the newly freed slaves. It wasn’t until 1917, four years after the 17th Amendment requiring Senators be elected directly by the people of their state, that a “cloture motion” was even created that could end a filibuster. But it required two-thirds of the Senate to agree, a steep hill to climb.
The filibuster continued to be a powerful tool against civil rights through the 1960’s. The famous 1964 Civil Rights Act endured a fifty-four-day filibuster. It took that long for proponents of the legislation to get more than two-thirds of the Senators to vote for it.
It’s Just a Rule
A majority of the Senate agrees to the Senate rules every two years. That simple majority can change the rules, including the filibuster, in their organizing resolution. In 1975 they reduced the “cloture” number to sixty. They also created exceptions to the filibuster, including budget reconciliation bills with the House. Since then they have added Cabinet appointees, Federal judge nominees, and Supreme Court nominees. All those require a simple fifty-one vote majority end debate and pass.
And in order to “speed up “ the Senate, Senators can now simply say “I will filibuster”. They don’t have to “take the floor” anymore, as long as they have at least thirty-nine other Senators that agree with them (that prevents cloture). So today, Senators can “phone in” a filibuster, rather than actually going through with it.
So why wouldn’t the Democratic Senators, in control by the tie-breaking vote of the Vice President, simply rule that it only takes fifty-one votes to end debate? Then they could proceed to pass the whole range of President Biden’s backed legislation, from voting rights to LGBTQIA rights and climate change to infrastructure. The simple answer is this: 2022. Should the Senate slip back into Republican control in two years, the Democrats want the same “tool” to protect their minority that John C Calhoun used in in the 1840’s.
Of course, that assumes that a 2023 Republican Mitch McConnell-run Senate wouldn’t simply change the rules again, and make all votes a simple majority. It’s all just a “gentleman’s agreement”in the Senate, that the party in charge won’t use the “nuclear option” and drop the filibuster.
Each Senate makes their own deal, and takes their own chances.
