Seriously, that estimate of working in excess of 2,160 hours straight would be the absolute minimum required for a United States Senator just so the Chamber can begin addressing issues such as the economy, infrastructure, and matters important to you and me but apparently not too many Senators.
A former colleague recently asked about comparative obstructionism in the United States. Actually his question referred to Congressional stagnation or stalemates in various Congresses and the successes and failures during presidential administrations by the majority party which in his question referred to the party having the majority in Congress or holding the Executive Office. That question led to the question of why does having the majority in the House mean more in terms of legislation passing than it does in the Senate. My friend unknowingly stepped across that invisible line into the “Filibuster Zone.” Will his adventure end in a nuclear explosion? Is that fog, smog, or a mushroom cloud up ahead?
The Constitution of the United States of America
Within the text of the Constitution of the United States of America, the framers after experiencing the inability of action within the Articles of Confederation required a super majority for five (5) specific items: treaties, impeachment, to override a veto, Constitutional amendments, and to expel a Member.
The Filibuster Conundrum:
Consider the original rulebooks for the United States Senate and the House of Representatives in 1789. Both Chambers had a “previous question” motion which allows for a simple majority to cut debate. That still exists in the House, but the Senate removed it in 1806.
Vice President Aaron Burr who had been indicted for the killing of Alexander Hamilton delivered a farewell address to the United States Senate in 1805. He remarked that the Senate rulebook was confusing and repetitious and among other things suggested the removal of the “previous question” motion. In 1806, the Senate removed that motion from its rulebook. Approximately 30 years later, Senators recognized the new ability to filibuster.
Filibusters were not common at this point. One reason is that Senators tended to conduct business on a majority rule, and given the lesser workload any filibuster could be waited out before concluding business.
Following the Civil War, the Senate became more polarized and many attempted to reinstate the “previous question” motion. The threat of filibuster, however, made those attempts fruitless as Senators withdrew their proposals in order to not jeopardize coalitions made for passage of their priority issues. Without the “previous question” Senate leaders adopted measures such as “unanimous consent” to try and thwart total obstructionism.
A portal to the primary documents for the above can be assessed here:
The situation changed in 1917 with the invention of cloture with the adoption of Rule 22 to which a portion is copied below.
Rule XXII of Standing Rules of the Senate
“Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.”
A culmination of events allowed for this passage. Senators filibustered President Woodrow Wilson’s proposal to arm merchant ships. The press printed that the country needed to enact a cloture rule so that this “war measure” could pass the Chamber. The public burned these Senators labeled by Wilson as “a little group of willful men” in effigy. Rule 22 passed.
The concept of a supermajority constituting 2/3 resulted from bipartisan negotiations.
The Future, Present, and Past
In 1975, the Senate amended the cloture rules reducing the supermajority from 2/3 to 3/5. These changes can be seen Senate Resolution 4 of the 94th Congress and the related Senate Resolution 93 of the 94th Congress.
The summary of Senate actions with roll call votes can be read here:
Premise and Reality:
One hears the argument that the filibuster is a safeguard to protect the rights of the minority. That argument can be valid, but its validity is present only when levied against the actual proposal one opposes. The reality is that ever increasingly the filibuster is used on unrelated and uncontroversial issues merely to delay the Senate from addressing other issues.
Technically a single Senator can filibuster multiple times on a single bill as it moves procedurally. Even if cloture can be invoked immediately, following each cloture vote the filibustering Senator can prevent the discussion of new business for a period of 30 hours.
Senator Tom Harkin of Iowa offered some examples of these delays in a 2010 address at the Brennan Center for Justice.
- If the Senate would ultimately vote 96 to 0 to confirm an appointment as Administrator of the General Services Administration, why did filibustering delay that vote for 8 months?
- If a judge appointed to the Fourth Circuit Court of Appeals would be confirmed by a vote of 99 to 0 was there justification to delay that vote by filibuster for 5 months?
Many filibusters represent attempts for a Senator or group of Senators to extract a ransom from other Senators and hence the population of the United States. For example, one can look at the blanket filibuster instituted by Senator Richard Shelby of Alabama on appointments to various positions. His objection was not about any or all of the individuals, but over his desire for financial contracts between his state and Northrop Grumman.
The Nuclear Option:
The concept is that the leader of the Senate can institute a procedural change on Senate rules which is then upheld by a majority vote of the Senate. The idea actually predates the nuclear age. Some credit Senator Trent Lott of Mississippi with the coinage of the phrase “nuclear option” in the early 2000s. Living in MS at the time, I remember an article in the Clarion Ledger but cannot locate it in my files or online. Regardless of the start, nuclear option became a standard term in 2005 with Majority Leader Bill Frist of Tennessee threatening to invoke the change to end filibusters by members of the Democratic Party on nominations made by President George W. Bush. The threat eased the gridlock in the Chamber at that time.
Was Nuclear warranted?
Looking at whether the nuclear option for minor appointments and confirmations should be invoked, I look at the practical side.
- On an absolute worst case scenario when the Senate had 196 nominations to confirm if each had been filibustered, other work on other issues would be halted for a period exceeding 8 months if the Senate would be in session 24 hours a day, 7 days a week, for that period.
- Senator Shelby’s blanket filibuster would potentially halt the Senate for a period of just less than 3 months of 24/7 time spent in session.
All of this time spent on votes which when taken often pass unanimously or at worst with supermajorities.
Regardless of ideology, how is that an effective and efficient usage of time?
If someone is concerned about the qualifications of a specific individual nominated, most certainly bring those concerns to the Floor. Demanding a personal ransom to allow the Chamber to hopefully work on “less pressing” issues such as the economy, infrastructure, and areas threatening the stability of the country are not signs of someone wanting to help the United States of America.
Those arguing precedent and Senate history should focus that uproar on the 94th Congress in 1975 where the Senators decided to change the rules for important matters and not just minor appointments.
Even with nuclear, all issues still require a majority vote at the very least.
Just a few final observations:
Perhaps it is fitting that the idea of the filibuster results from a recommendation made by Aaron Burr. One of my professors at the MA level liked to make a blanket statement which he actually asked me to answer during my oral comprehensive exams. I’ll edit to keep my postings rated PG. According to this highly regarded military historian the three (3) biggest SOBs in American History were: A) Benedict Arnold; B) Aaron Burr; and C) James Wilkinson. Many have heard the name Arnold, some are aware that Burr killed Hamilton, but fewer have heard of Wilkinson or his connection with Burr. Those who enjoy reading mystery, intrigue, good and bad luck, and chances to exclaim, what were they thinking, may like to visit your local library to find books on Burr, Wilkinson, and the Louisiana Purchase.
Doesn’t that tie into how one might describe someone who filibusters not on the issue at hand, but to obstruct other business from occurring so that they can receive some benefit in return?
And for some who want to argue that the framers intended for a filibuster, please refer to Federalist Paper 63. Whether the author of that piece was James Madison or Alexander Hamilton, they address the dangers of the concept.
Anyone looking for a more detailed overview of the history of the filibuster and whether it is a part of true principle or politics as we know it, might find this work by Sarah Binder interesting.