Pre-Politics
Before taking on its current political meaning, the word filibuster was a pre-colonial term that referred to an irregular military adventurer. The original “filibusters” were pirates of the Caribbean. They were disruptive and lawless privateers who boosted the goods of ships traveling under Spanish sail.
It is believed to derive from the Dutch word vrijbuiter, which means “to plunder,” with vrij meaning “free” and buit meaning “booty.” Booty, according to Michael Sheen, a retired Chicago English teacher who writes the WordMall blog, means “collective plunder or spoils” such as “household goods seized and carried off” by armies. These “freebooters” or “filibusters” traveled under no nation’s sail and often sought to “privateer” goods and gold being transported by Spanish ships in the Caribbean – from slaves to gold.
In the 1800s, the term took on new meaning, referring to a group of adventurers who, without the consent of the American government, tried to assume power in several Latin American and Caribbean countries. Filibusters were intent on overpowering the ‘lesser peoples’ despite neutrality laws that forbid Americans from privately engaging in warfare with other countries. Cuba, Honduras, Nicaragua, Costa Rica and Mexico were all victims of filibusters from 1830 to 1860.
Famous filibusters were larger-than-life characters such as Narciso Lopez, a Venezuelan-born soldier who liberated Venezuela from Spanish rule. William Walker, a southerner from Tennessee, annexed parts of Mexico and named himself president. In his proclamation of control over Lower California (then part of Mexico), Walker explains why the territory was rightfully his, an explanation that neatly sums up the filibuster movement: Mexico cannot complain if “others take it and make it valuable.”
The Beginnings of the Political Filibuster
By the 1870s, the word acquired the political sense it has today, although in early use it was applied to a person who engaged in long-winded speeches, rather than to the act of speaking itself. No serious scholar argued that the concept – or anything resembling it – was in the Constitution or its founding documents.
The contemporary Senate procedure continues to bear traces of the word’s origin in that, like the pirates, a political filibuster is used to disrupt. Article I, Section 5 of the Constitution states that “each House may determine the rules of its proceedings.” In April 1789, the House and the Senate adopted joint rules to guide both houses. The rules allowed for a simple majority to call for a vote without further debate on the previous question, but no rule prevented a member of either the House or Senate to speak without end.
At the time, to speak without end on the Senate floor was considered unseemly. Thomas Jefferson wrote in his manual of parliamentary practice he composed as vice president that “[n]o one is to speak impertinently or beside the question, superfluously or tediously.” However, in 1805, Vice President Aaron Burr urged the Senate to eliminate this rule. In 1806, the Senate amended its rules to allow for unlimited debate.
It wasn’t until 1837, however, when a minority block of Whig senators prolonged debate to prevent Andrew Jackson’s allies from expunging a resolution of censure against him – the first real filibuster that we are familiar with today. The Senate formally adopted a rule of unlimited debate in 1856, but there was no mechanism to stop debate under the rules. This unlimited-debate rule eventually became so cumbersome that senators made attempts at reform in 1873, 1883, and 1890, but they were all unsuccessful. In 1892, the U.S. Supreme Court upheld the filibuster in United States v. Ballin by ruling that the Senate was free to amend its procedural rules by simple majority; however, a rule change could be prevented by a filibuster.
The Modern Filibuster
From 1917-1919, at the outset of American involvement in World War I, Democrats had initiated an organized series of filibusters against a bill to arm American ships against German submarines at the end of the Senate session — guaranteeing the bill would not pass-and resulting in the ire of then-President Wilson. As a result of these actions, the Senate amended its rules to allow debate to be shut off by a two-thirds vote of those senators present to vote. This process is known as cloture and remained in effect from 1917 until 1949. However, even with the cloture, it provided little deterrent during this period. Between 1917-1950, there were 21 motions to invoke cloture in the Senate, but in only four instances was cloture invoked.
The next time the filibuster was deployed at a large scale was primarily to stop the passage of civil rights legislation. In 1964, Southern Democrats filibustered for 74 hours straight against civil rights. After 1964, Senate Majority Leader Mike Mansfield (D-Mont.) instituted two modifications: to force cloture votes on filibuster threats and to implement a “two-track” system. This system, instituted in 1972, provided senators the option to filibuster while the chamber considers other legislation. During this “silent filibuster,” a member does not need to speak on the floor to block a vote from happening and can even filibuster by email. A senator is not required to speak in public to prevent the passage of a bill, they simply need to issue a warning that there are enough votes to support a filibuster. The image of Jimmy Stewart standing up against “the Washington Machine” was now a thing of the past.
Almost immediately, the adoption of two tracks changed the game profoundly. It was followed fairly immediately by a period in which there are more filibusters than ever before. There have been nearly twice as many Senate actions to defeat filibusters in the last ten sessions of Congress than in the previous thirty-eight sessions combined. The number of motions to defeat filibusters from the 103rd Congress through the 112th was 888; the number from the 65th through the 102nd was 483. That the number exploded after the two-track system was adopted is not coincidental. The system of stealth filibustering allowed Senators ‘to obstruct Senate business but without paying much, if any, political cost for doing so.’ It has led to a Senate where an invisible filibuster by default hangs over any controversial legislation, or, in other words, allowed the minority to reign.
For the very first time in the history of this country, the minority controlled the will of the elected majority. This was anathema to the foundation and founding of the United States of America in what was immediately recognized as the “nuclear option.” When first proposed in 1917, the nuclear option sought to change those basic constitutional norms that the country had fought two wars to preserve. In 2013, Senate Majority Leader Harry Reid (D-Nev.) made it famous. Simply put, the nuclear option or constitutional option is a procedure allowing the majority party to change a Senate rule or precedent with a simple majority vote. Normally, the Senate needs a two-thirds vote to invoke cloture on a resolution to change its standing rules, but the nuclear option will undoubtedly change long-standing rules. When the majority party inevitably becomes the minority party, that party would be stripped of most of its leverage, thanks to its own rule change.
In 2013, Reid used it to change the vote requirement for executive nominee confirmations on the floor. Prior to the rule change, senators could filibuster until a cloture motion requiring 60 votes was passed in the chamber. The nuclear option changed the requirement to a simple majority, which Reid invoked in response to Senate Republicans blocking the nomination of three D.C. Circuit Court judges. The rule change passed by a vote of 52-48 with Carl Levin, Joe Manchin, and Mark Pryor being the only Democrats to vote in opposition. According to the Congressional Research Service, of the 67 times between 1967 and 2012 that the filibuster was used on a judicial nominee, 31 were during the Obama administration. The change in rules did not apply to legislation or Supreme Court nominees.
On April 3, 2017, Senate Democrats announced that they had a sufficient number of votes to sustain a filibuster against the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. In anticipation of an expected filibuster, Senate majority leader Mitch McConnell (R-Ky.) indicated that he was prepared to restrict the use of filibusters on Supreme Court nominations. Essentially, McConnell said that Republicans would change the rules to allow a Supreme Court nominee to be confirmed with 51 votes instead of 60. On April 6, 2017, the Senate failed to invoke cloture on Gorsuch’s nomination. McConnell then raised a point of order that the cloture vote should be upheld under the precedent established in 2013 and applied to all nominations. That precedent called for a simple majority vote to close debate on all nominations. That point of order was denied, and McConnell appealed the ruling of the chair. Eventually, Justice Gorsuch was confirmed.
Legal Cases Against the Filibuster
In 2014, a legal challenge was filed against the filibuster, but was unsuccessful. In the case of Common Cause v. Biden, the final appeal was denied seeking to invalidate the Senate’s filibuster rule as a violation of the Constitution’s implicit principle of governance by the majority not based on the merits of the case. The complaint alleged the unconstitutionally of the filibuster under Senate Rule XXII that lets a single senator force a 60-vote threshold for cutting off debate (or invoking “cloture”) that then allows legislation to provide for a final vote. But the judge ruled against Common Cause, stating: “In short, Common Cause’s alleged injury was caused not by any of the defendants, but by an ‘absent third party’—the Senate itself. We therefore lack jurisdiction to decide the case.”
Common Cause’s counsel, Stephen Spaulding, took issue with the final ruling, stating: “Obviously, we’re disappointed by today’s DC Circuit decision. Our attorneys are reviewing the court’s opinion before deciding on a future course of action. It’s important to note that the court’s decision was strictly procedural; the judges did not rule on the merits of our claim that the filibuster rule and its 60-vote requirement for Senate action is unconstitutional.”
Why The Filibuster Must Be Repealed
Now, the current majority government seems again once again at the mercy of the minority and the stakes are higher than ever. From voting to infrastructure to climate to basic human rights, Washington remains in gridlock to the whims of a few and yet again, it appears the filibuster is at least somewhat to blame.
In 1957, Vice President Richard Nixon, sitting as presiding officer of the Senate, issued two advisory opinions that a crucial provision of the Senate’s filibuster rule — requiring a two-thirds vote to amend it — was unconstitutional. Nixon’s constitutional determination was reaffirmed by subsequent vice presidents Hubert Humphrey and Nelson Rockefeller. In fact, it was this ruling that allowed both the Democratic-controlled Senate in 2013 and the Republican-controlled Senate in 2017 by a simple majority vote to eliminate filibusters for all executive and judicial nominees.
Vice President Kamala Harris possesses the same power to rule that the current version of the Senate filibuster, which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states equal suffrage in the senate of Article V of the Constitution. Harris, as presiding officer of the Senate, can — and should — declare the current Senate filibuster rule unconstitutional. This would open the door for discussions on a new rule that would respect the minority without giving it an unconstitutional veto.
Wyoming with 580,000 inhabitants, elects the same number of senators as California, with its 40 million residents. A person in Wyoming thus has 65 times more voting power in the Senate than a person living in California. The current 60-vote filibuster rule makes this imbalance even worse. While the 17th Amendment revolutionized the Senate by shifting the election of senators from state legislators to the voters, it preserved the founders’ decision to give each state two senators with equal voting rights. But a 60-vote supermajority rule destroys the mathematical equality of each senator’s vote.
Everyone agrees that the text of the Constitution does not allow for simply giving California more senators than Wyoming. Nor can the Senate’s lack of representative fairness be cured by adopting internal Senate voting rules. But that does not mean the Senate has the authority to create even more unfairness than already exists.
The best way forward is for Harris to rule that the current version of the Senate filibuster operates as an unconstitutional 60-vote supermajority requirement for the enactment of general legislation —in violation of Article V, the 17th Amendment, and the constitutional presumption of majority rule. Such a ruling would trigger two events.
The full Senate could seek to overrule Harris by majority vote. In that case, the senators would no longer be debating the filibuster as mere political policy, but about a profound constitutional question. Sen. Joe Manchin, and a Republican senator or two, might well care about ensuring that no state is deprived of “equal suffrage” under the Constitution.
At the same time, discussions could begin about what a constitutional rule protecting the Senate minority might look like. Perhaps the Senate would choose to abandon the filibuster. Or it might adopt a rule requiring strenuous effort — li
ke demanding that a senator get on the floor and actually talk to prevent a bill from proceeding to a vote — which could limit the occasion of filibusters. Or it might require successively lower votes to end the filibuster, initially 60, then 55, and then just a majority.
Eliminating the filibuster now would benefit the Democrats, but it would help the Republicans the next time they control the Senate. Harris can move this forward by following the example of her predecessors by making a constitutional ruling that the current filibuster rule needs to be changed. Though the current Supreme Court is conservative, whatever the Supreme Court has been throughout the history of this country, the nine members have always maintained a healthy respect for the Constitution, laws, and traditions that this country was founded on. If crafted correctly, a challenge to the filibuster would preserve the separation of powers that Hamilton, Madison, Washington, and all the other founders fought and died for. It is only in their impartial hands does this country have a chance to return to the original principles of our nation.
