On the Filibuster: Its History, Various Forms, The “Nuclear Option”, Etc.

Well, its official: the United States Senate has detonated “The Nuclear Option” with Supreme Court nominees. There is precedent for this where lower judicial positions and cabinet appointments are concerned.

The Democratic leadership enacted it in November of 2013 despite claiming for years that they were opposed to the idea. Nor was Senator Harry Reid the only senator who opposed the idea; indeed, Senator Barack Obama also opposed the idea back in 2005 as did Senator Joe Biden and not a few other Democrats as this video from MSNBC well demonstrates:

Before we get to the issue of the nuclear option in general, it bears noting that Democrats crying about it now were supporting it back in 2013. I could list any number of examples but this one from Sen. Elizabeth Warren should suffice as an example of many which could be posted:

As it seems appropriate to delve a bit into the history of the filibuster before we pronounce whether or not abolishing it in any form is a good idea or not, I will reference an article from Sarah Binder from The Brookings Institute. To wit:

I appreciate the opportunity to testify today about the history of the filibuster. I want to offer three arguments today about that history.
First, historical lore says that the filibuster was part of the original design of the Senate. Not true. When we scour early Senate history, we discover that the filibuster was created by mistake.

Second, we often say that the 19th century Senate was a golden age of deliberation. But the golden age was not so golden: Senate leaders by the 1840s were already trying to adopt a cloture rule. But most such efforts to bar the filibuster were filibustered.

Third, creation of the cloture rule in 1917 was not a statement of the Senate’s love for supermajority rules. Instead, it was the product of hard-nose bargaining with an obstructive minority. Short-term, pragmatic politics shape contests to change Senate rules.

Allow me to elaborate on these three points…

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. Let me explain.

The House and Senate rulebooks in 1789 were nearly identical. Both rulebooks included what is known as the “previous question” motion. The House kept their motion, and today it empowers a simple majority to cut off debate. The Senate no longer has that rule on its books.

What happened to the Senate’s rule? In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he offered this advice. He said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion. Now, today, we know that a simple majority in the House can use the rule to cut off debate. But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, get rid of the previous question motion, the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book. Why? Not because senators in 1806 sought to protect minority rights and extended debate. They got rid of the rule by mistake: Because Aaron Burr told them to.

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.{1}

Even with that, the proliferation of filibusters really did not begin until after the Civil War and the mechanism to halt them (cloture) was not formalized until 1917. The reason why cloture was formulated is interesting so we will touch on it here from Binder’s afore-quoted testimony:

Senate leaders tried and failed repeatedly over the course of the 19th and early 20th centuries to reinstate the previous question motion. More often than not, senators gave up their quest for reform when they saw that opponents would kill it by filibuster—putting the majority’s other priorities at risk. Unable to reform Senate rules, leaders developed other innovations such as unanimous consent agreements. These seem to have been a fallback option for managing a chamber prone to filibusters.

Why was reform possible in 1917 when it had eluded leaders for decades? And why did the Senate choose supermajority cloture rather than simple majority cloture?

First, the conditions for reform. After several unsuccessful efforts to create a cloture rule in the early 1900s, we saw a perfect storm in March of 1917: a pivotal issue, a president at his bully pulpit, an attentive press, and a public engaged in the fight for reform. At the outset of World War I, Republican senators successfully filibustered President Wilson’s proposal to arm merchant ships—leading Wilson in March of 1917 to famously brand the obstructionists as a “little group of willful men.” He demanded the Senate create a cloture rule, the press dubbed the rule a “war measure,” and the public burned senators in effigy around the country.

Adoption of Rule 22 occurred because Wilson and the Democrats framed the rule as a matter of national security. They fused procedure with policy, and used the bully pulpit to shame senators into reform. Second, why did senators select a supermajority rule? A bipartisan committee was formed to negotiate the form of the rule. Five of the six Democrats supported a simple majority rule; one Republican supported a supermajority rule, and one Republican preferred no rule. Negotiators cut a deal: Cloture would require two-thirds of senators voting.{2}

Before touching on structural differences put in place in 1975, one that often is not realized happened in 1970 that paved the way for more filibusters to be enacted than was the case previously:

[I]n 1970, the late Senate Majority Leader Mike Mansfield led a movement to institute a “two-track” system, which eliminated the one-bill-at-a-time tradition and allowed two or more bills to be considered simultaneously.

As a result, when the minority party wanted to derail a bill or nomination, and the majority party didn’t have the 60 votes needed for cloture, there were no hours-long speeches needed to stymie the majority.  An opposition senator simply announced his intention to filibuster and the issue was set aside – often never to be heard from again – while the Senate moved on to other business.

The effect of the two-track system was dramatic. Between 1917 and 1970 there were only 58 filibusters, according to research by California Congressman Tom McClintock. Since 1970, there have been 1,700.{3}

George Will spoke of this change and the the 1975 reforms of the filibuster in the following way:

In 1975, imposing cloture was made easier by requiring a vote of three-fifths of the entire Senate, a change the importance of which derived from what Majority Leader Mike Mansfield, D-Mont., did in 1970: He created the “two-track” system whereby the Senate, by unanimous consent or the consent of the minority leader, can set aside a filibustered bill and move on to other matters.

Hitherto, filibustering senators had to hold the floor, testing their stamina and inconveniencing everyone else to encourage the majority to compromise. In the 52 years after 1917, there were only 58 cloture motions filed; in the 46 years since 1970, there have been 1,700.{4}

In other words, since 1970 a filibuster need not not tie up and paralyze the entire Senate as was the case previously and since 1975, the cloture threshold was lowered from 67 to 60 and filibusters did not have to be actively contested.

Under the two track system, it could simply be noted that there was an intention to filibuster a bill and if the votes were there for it, the bill could be set aside and other business attended to in the meantime.

Well, it does not take a rocket scientist to figure out that with these changes to the Senate operating procedure, the question was not merely if they would lead to a proliferation of filibusters but when. And since 1970 (and particularly since 1975!), the number of filibusters has skyrocketed.

On the subject of judicial and cabinet filibusters, the history is not so long and distinguished as the legislative filibuster which in divers forms has been theoretically possible since 1806 and actually in existence since 1837.

No, the filibustering of judicial nominees has a much more recent pedigree. Therefore, when Harry Reid eliminated it in 2013, he was hardly doing away with any kind of venerable or longstanding tradition in the Senate:

What, then, could induce any Republicans to entertain the idea of restoring the judicial filibuster? Well, let’s consider the two arguments (or perhaps the two variants of a single argument) that I’ve encountered from proponents. The first argument is that it’s important to restore the grand traditions of the Senate that make it a very different body from the House. For present purposes, I’ll happily accept the premise of the argument and simply point out that it is misplaced. The longstanding tradition of the Senate, which prevailed throughout American history until Democrats flouted it beginning in 2003, is that the partisan filibuster of judicial nominees is an unacceptable tool of obstruction. Before 2003, the only filibuster of a judicial nominee was the broadly bipartisan filibuster of LBJ’s effort to elevate Abe Fortas to be Chief Justice in 1968. (See point 1 here and this post for more details on the Fortas filibuster.) Leaving in place the abolition of the filibuster for lower-court judges respects that tradition. Reimposing the filibuster wouldn’t.

The second argument that proponents make is that reinstating the judicial filibuster is necessary or useful to help preserve the legislative filibuster. But this argument also flies in the face of actual Senate traditions. The long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently. Filibusters over legislation date back to the 1830s.{5}

I point out the significant difference between legislative and judicial filibusters to make the point that they are two different creatures and thus need to be treated differently. It was only possible to filibuster judicial nominees after 1949:

Rule XXII cloture would be broadened to apply to all debatable propositions (including, for the first time, nominations, treaties, and motions to proceed) except for motions to proceed to a rules change, but the super-majority cloture requirement would be raised from two-thirds of Senators present to two-thirds of all Senators.129 Nominations were swept into the rule in 1949, but only by happenstance. The Senate debates include not a single mention of filibusters of nominations, likely because the concept was so alien to the Senate of 1949.{6}

In other words, there was no filibuster possibility for nominations either to cabinet or the judiciary prior to 1949 and that option only became possible by accident due to some reforms of Senate procedure in 1949.

For that reason, there was only one filibuster of a Supreme Court nominee prior to the recent filibuster of Neil Gorsuch in 2017 and that was back in 1968. President Lyndon B. Johnson had appointed Associate Justice Abe Fortes to the role of Chief Justice of the Supreme Court. The differences in the Fortes and Gorsuch cases could not be any more different.

First of all, Fortes was a lame duck nomination in an election year whereas Gorsuch is a nomination less than one hundred days into a presidency. Second, it was a bipartisan coalition that filibustered him over issues of suspected collusion with the Johnson Administration. The Fortes hearings revealed that after he joined the Supreme Court, Fortes had regularly involved himself in White House policy including drafting presidential speeches and advising him on policy: a violation of both judicial ethics as well as the principle of separation of powers.

There is no similar collusion of Gorsuch with President Donald trump, indeed Trump probably had no idea who he was until Leonard Leo and The Federalist Society suggested him as a possibility for the court in the past year.

So there are no similarities whatsoever between Fortes and Gorsuch. Considering that along with the weaponization of the filibuster as a threat on cabinet and judicial nominations in the past fifteen odd years, then-Majority Leader Harry Reid’s abolition of the filibuster in 2013 for all cabinet and judicial nominees except for the Supreme Court merely restored most of what the status quo was on these matters prior to 2003: hardly a venerable tradition by any stretch of the tape.

When seen in that light, Majority Leader Mitch McConnell’s invocation of the nuclear option on Supreme Court nominees far from making “America Toast” as some of the contemporary ignorants among us claim{7} instead achieves something else altogether. Namely, McConnell’s move merely supplements Reid’s prior move and thus restored in full the status quo on cabinet and judicial nominations as it was prior to 1949.

Its inevitable that talk will now center on whether the legislative filibuster should be done away with as well and hopefully the reason for the difference I have made in this article between the two is evident. In a nutshell: the legislative filibuster in some form or another{8} is eminently traditional in American politics and the cabinet and judicial filibuster was an accident of the reforms of Senate procedure of 1949.

Therefore, with the moves made by Reid and McConnell in recent years I do not have much of an issue. However, a wholesale abolition of the legislative filibuster: that is a precedent I do not believe should be touched. Otherwise, it could come back to bite the ass of its proponents later on down the road.

Notes:

{1} Sarah A. Binder: Excerpt from The History of the Filibuster (circa April 22, 2010)

{2} Sarah A. Binder: Excerpt from The History of the Filibuster (circa April 22, 2010)

{3} Ted Diadiun: Excerpt from The Evolving Filibuster (circa February 8, 2017)

{4} George Will: Excerpt from End the Filibuster’s Power of Obstruction (circa March 29, 2017)

{5} Ed Whelan: Excerpt from Don’t Bring Back the Judicial Filibuster (circa November 5, 2014)

{6} Martin Gold: Excerpt from The Constitutional Option (circa 2004)

{7} “If the Republicans use the nuclear option to change the Senate rules and confirm Gorsuch, the damage to this nation that became so evident following the November election will intensify. And the way it looks now, there may be no way to stop this damage.” [Donna Smith: Excerpt from If GOP Goes Nuclear, America’s Toast (circa May 30, 2017)]

{8} I would however support reforming filibuster procedures.

About Shawn McElhinney 13 Articles
I call fair balls and strikes on all subjects I write on. I do not believe in spin nor do I believe in being a slappie for any person or cause -even those causes I happen to generally agree with. I write from a predominantly conservative point of view but I am not wedded to conservatism and when I view it as wrong or lacking on an issue, I will where applicable say so. I am also a longtime Independent voter and while being an Independent is all the rage now after the last election season, to paraphrase that great western philosopher Barbara Mandrell: I was Independent, when Independent was not cool.

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