In addition to the events of the Philadelphia Convention (1787) – during which time the shape and purpose of the thing was described, debated, and settled – there have been two historical developments which could be said to have fundamentally defined the modern form of the United States Senate. One was the gradual evolution of the parliamentary procedure known as the filibuster between the early 19th century and 1917. This process was not a particularly deliberate one – the end result being something more like an accident that has since been layered over with the sheen of tradition – but it nevertheless represents one of the most consequential changes to the basic manner in which the Senate conducts its everyday business. The other, meanwhile, was the essential structural changes wrought by the ratification of the 17th Amendment in 1913. By altering the relevant terms of the Constitution so that Senators were thereafter to be popularly elected rather than legislatively appointed, this modification to the framework of government originally established in 1787 drastically transformed the relationship between the Senate and the American people. No longer the picked creatures of the various state assemblies, Senators became vote-chasers like their counterparts in the House of Representatives, as well as notably more enmeshed in federal affairs rather than local. Between these two developments, the end result has been the emergence of distinctly different political dynamic than that which the Framers explicitly intended for the Senate. Having been designed to serve as a fundamentally aristocratic body – in as much as it would represent the nation’s landed and monied interests – it has instead become the stomping ground of populists and party hacks. Having been granted certain responsibilities for the purpose of applying state discretion to federal decisions, it has since transformed into an instrument by which the majority party obstructs its opponents to the point of complete and total standstill. To be sure, this outcome is nowhere close to what the Framers originally intended. For that matter, neither does it likely resemble what those who gave rise to the filibuster or to the 17th Amendment particularly desired, either. In the end, however, these facts matter little. The Senate is what it is. And it is likely better, in the immediate, to prioritize understanding over lamentation.
The emergence of the filibuster as a
stock-standard aspect of how the United States Senate currently functions
makes, as aforementioned, for a rather strange and lengthy story. It was not
the intended creation of any individual or group, nor the culmination of a
persistent and well-organized campaign. A thing of rules and procedure, the
filibuster was never something that those outside the confines of the Senate
were generally even aware was possible before it was definitively established
at the very end of the 1910s. Indeed – and as mentioned above – it rather came
about as the result of an accident. Or perhaps, to put a finer point on it, a
series of accidents. Or perhaps, to be still more specific, one accident, some
creative thinking, and a good deal of pent-up frustration. The strangeness of
it all is by now hopefully becoming apparent. In any case, the story can fairly
safely be said to be begin in the year 1789. The Constitution had been ratified
by a sufficient number of states to come into force in June of the previous
year – being nine of thirteen – after which Virginia, New York, and North
Carolina added their names to the tally. Rhode Island as yet remained outside
the new union of states, but this would continue to be the case for only a
short while more. In the meantime, the remaining twelve states set about
preparing for and conducting the various elections and appointments necessary
for their participation in the newly erected national government. Representatives
were sent to the House, Senators were appointed to the Senate, Electors were
chosen by whatever means the states decreed, and George Washington – to the
surprise of no one – was chosen as the nation’s first President. Shortly
thereafter, as these selfsame institutions set themselves to the task of
establishing their various operating procedures going forward, the majority in
the Senate adopted one of many rules for the purpose of holding debates and
scheduling votes. This rule, in the form of a “previous question” motion, would
allow discussion on a given subject to be brought to a close by a simple
majority vote. If the vote succeeded, debate would cease and another vote would
be immediately held on the motion that had previously been debated. If the vote
failed, debate would continue until either every member present was satisfied
or another previous question motion was introduced.
This kind of procedure was hardly
novel at the time that the Senate adopted it. Indeed, it had been a part of
English parliamentary tradition since at least the early 17th
century. And in terms of the rationale behind it in the specific context of the
United States Senate, its intended purpose could not have been more obvious. In
order to prevent debate on a given question from continuing ad infinitum,
Senators were to have at their disposal a simple and dependable means of ending
discussion and proceeding to a vote. So long as a (simple) majority of those
present voted in the affirmative, debate would cease and the business of the
chamber would be allowed to continue. Granted, there did not seem to be any
particularly pressing need for such a procedure. That is to say, it did not
appear, circa 1789, that the Senate was bound to become the site of deadlock
resulting from debates that refused to end. But it was certainly possible that
the debate on a given subject – whether in good faith or bad – might drag on
somewhat longer than the majority of Senators would prefer. The previous
question motion might accordingly be thought of as a kind of parliamentary
safety valve. All things going to plan, it would not be needed. But if
something did go wrong – if a maverick Senator attempted to hijack the debate
on a motion they opposed to as to prevent its passage – all of those involved
would surely be glad of its existence.
Enter, at this stage, one Aaron Burr,
former Senator from New York and now Vice-President of the United States. Distressingly
close on the heels of his fateful encounter with fellow New Yorker Alexander
Hamilton at Weehawken, New Jersey in 1804, Burr made a number of
recommendations to the membership of the Senate in his capacity as that body’s
formal president. One of these, circa 1805, was that the leadership of the
Senate agree to dispense with the previous question rule. Though less than a
decade into its life, Burr observed, the upper house of Congress had already
become overburdened with procedures and conventions that served only to
frustrate its ability to perform its various duties under the Constitution. As
many of these rules as could be reasonably eliminated, the Vice-President thus
affirmed, should accordingly have been purged. As a previous question motion
had been introduced only once in the preceding four years, it stood out as
being particularly redundant. Burr did not remain in the office of
Vice-President for much longer after offering this advice, of course, but the
Senate leadership did ultimately opt to take it to heart. In 1806, pursuant to
their former presiding officer’s advice, the Senate ceased to observe the
previous question rule. Debate on any motion was thereafter permitted to
continue indefinitely.
This was not an outcome which the contemporary leadership of the Senate desired, it bears noting. Far from aiming to provide potential obstructionists with a tool to aid in their efforts to frustrate the will of the majority, they were simply following the advice of a fellow parliamentarian. The Senate had become rather hedged-in by with rules and procedures, and the previous question motion had gotten very little use thus far. So they eliminated it – perhaps unthinkingly, but with the best of intentions – and then they moved on with their business. Indeed, the country might be said to have moved on with its business, for the absence of the previous question rule had virtually no short-term aftereffects. It was now possible, to be sure, for a small group of Senators – or even a single Senator – to prevent a vote on a motion which they opposed from being held by essentially “talking it to death,” but this remained, for several decades, an entirely theoretical outcome. Over the course of the 1810s and 1820, rising tensions between southern states and northern states over the legal status and potential expansion of slavery – and more specifically the impact of these tensions on the decision-making of northern politicians vis-à-vis their fellow party members from the South – actually had the effect of preventing the most dramatic type of confrontation. Northerners who sought to maintain the cooperation of their southern counterparts adopted a course of conciliation and compromise, the result of which was the maintenance of a somewhat precarious balance of power whereby neither major party – first the Federalists and the Republicans, then the Whigs and the Democrats – were all that willing to allow their respective members to actively weaponize their discontent. Blatant obstructionism, in essence, was seen as too drastic to be sustainable if the dominant parties were going to hold themselves together.
There state of affairs did not last indefinitely, of course, particularly as the 1810s and 1820s gave way to the 1830s and 1840s and certain issues emerged which were more partisan than sectional in character. It is also worth noting that the absence of a previous question rule had by this point resulted in the emergence of a unique culture of debate whereby limits upon discussion were viewed by many Senators as being fundamentally incompatible with the inherent dignity of the institution itself. Unlimited debate, they affirmed, was an exclusive privilege of the Senate upon which no one had the right to infringe. These two developments coalesced rather neatly in 1841 when the sudden death of Whig President William Henry Harrison (1773-1841) resulted in the elevation of his running mate, former-Democrat-turned-Whig John Tyler (1790-1862), to the office of chief executive. As the Whigs also possessed a majority in both houses of Congress, the way seemed clear for Tyler to set about implementing his party’s legislative agenda. The Democratic minority in the Senate, however – numbering some twenty-two out of fifty-two members – were disinclined to simply sit back and let this happen without a fight. Though they controlled, between them, less than fifty percent of the available votes, the Democrats nevertheless resolved to form a wall through which the Whigs could not penetrate. Their weapon of choice? Debate. As Missouri Democrat Thomas Hart Benton (1782-1858) later recalled in his memoirs, he and his colleagues had settled,
On a system,
and with a thorough organization, and on a perfect understanding. There were
but twenty-two of us, but every one a speaker, and effective. We kept their
measures upon the anvil, and hammered them continually; we impaled them against
the wall, and stabbed them incessantly.
But while this description of the
tactic in question would seem to make the obstructionist intentions of the
Senate Democrats plain enough, their rhetoric at the time was decidedly
self-righteous. They were not attempting to obstruct the majority in
contravention of the will of the American people, they affirmed, but rather
simply seeking to exercise their right to debate the issues placed before them
to the fullest extent. Indeed, far from this dedication to freedom of
expression within the Senate marking the Democrats out as obstructionists, it
rather made plain that all those who sought to limit debate – such as the Whig
majority – lacked respect for the rights of their colleagues in the upper
chamber. As Democrat John C. Calhoun (1782-1850) put it when Whig Henry Clay
(1777-1852) attempted to introduce a strict time limit on debate, “An attempt
to rule the Senate by the despotism of the gag [is] as bad as introducing a
band of soldiers into it to force measures through by pitching opposing
Senators out of the windows.” Notwithstanding this kind of high-minded talk, the
actions of the Democrats reveal the true nature of their goals. First, when the
Whigs attempted to fire the existing publisher of the Congressional Globe
– that is, the public record of Congressional proceedings – so as to appoint a
new publisher and thus dispense a modicum of patronage, the Democratic majority
dragged out the resulting debate in the Senate for a full ten days. And while
they were ultimately unsuccessful, they tried the same tactic again in the
summer of 1841 when the Whigs attempted to pass a bill that would have
re-established the 2nd Bank of the United States. This latter
effort, which also failed, went on for a further fourteen days. Notwithstanding
these underwhelming early outcomes, however, the end result was the
consolidation of a potentially useful parliamentary tactic. Fearful, as ever,
that the nation’s defining sectional disagreements would eventually tear their
organizations apart, party leaders sought stability in such actions as would rally
their followers around them. Using the principle of unlimited debate to block
explicitly partisan legislation, even if the effort itself failed, effectively
served the purpose of binding the dominant parties together.
None of this is to say, mind you,
that as the utility of this kind of legislative obstruction became widely
apparent Senators immediately embraced the tactic without any second thoughts.
On the contrary – and as is keenly pointed out by Catherine
Fisk and Erwin Chemerinsky in their 1997 Stanford Law Review article on
the history of the filibuster from which much of this narrative was sourced –
Senators remained markedly ambivalent about the whole idea throughout most of
the 19th century. From very early in its history, the membership of
the Senate thought of their beloved institution as one defined chiefly by
collegiality and the concept of mutual respect. Senators were supposed to
behave with a degree of courtesy towards one another, and blatant
obstructionism was accordingly viewed as a gesture of contempt for those who
were supposed to be one’s colleagues. By the 1830s and 1840s, however, Senators
had also come to believe that there was something undeniably heroic in taking a
solitary stand against an otherwise popular initiative. Even an unsuccessful
attempt at blocking a vote could win respect for the Senator in question among
those who opposed their efforts, and there were certainly times, in hindsight,
when the obstructionist was proven to be justified. Nowhere is this emotional
contradiction better exemplified than in the name that the tactic eventually
adopted in the 1850s. A “filibuster,” in the original sense, was a kind of
freebooter or buccaneer, and the manner by which this term entered the American
legislative lexicon is both complex and exceptionally telling.
In the 1850s, it seemed, at a time
when the terms of the Missouri Compromise (1820) still held the nation’s free
states and slave states in strict parity, a practice emerged – entirely
unauthorized by the United States government – whereby a relatively small
number of southerners possessed of sufficient wealth raised what were
effectively private armies for the purpose of invading and conquering parts of
Mexico, the Caribbean, and South America. The intent of such expeditions was to
effectively circumvent the rigid control which the aforementioned compromise
sought to enforce upon the admission of slave states to the American republic.
Upon overthrowing the local regime and installing a government friendly to the
United States, these militant “filibusters” – from the Dutch vrijbuiter by
way of the Spanish filibustero – intended for their newfound
acquisitions to then be annexed by the American republic as slave states. Naturally,
these efforts met with the approval of those members of the contemporary
American political class who held restrictions upon the growth of slavery to be
fundamentally unjust. Filibusters and their efforts were accordingly thrust
into the center of domestic debate over American foreign policy in the 1850s,
with the dominant parties each adopting their own set positions. The more
ardently pro-slavery Democrats made plain their support of such private
adventurism; the more conciliatory Whigs conversely derided such efforts as little
better than piracy.
On January 3rd of 1853,
amidst a discussion in the House of Representatives on this very same subject,
the term “filibuster” made its debut as a term of legislative significance. North
Carolina Democrat Abraham W. Venable (1799-1876), in the midst of a debate on
the topic of American policy towards the rebellious Spanish colony of Cuba,
broke with his party by openly endorsing the Whig policy of non-intervention.
The Democratic leadership, it seemed, was eager for the United States to
acquire the restive island, preferably by way of a filibustering expedition, to
which strategy Venable declared himself entirely opposed. “If the policy of any
Administration [,]” he said,
Is to make the United States the
brigands of the world; if we are to become a race, a nation of buckaniers; if
we are to adopt the policy of falling upon our weaker neighbors and
appropriating their possessions, and thus fill the measure of national
iniquity, I utterly denounce the policy [.]
The result,
unsurprisingly, was a somewhat heated exchange between Venable and his fellow
Democrats. The one who ultimately delivered the most stinging retort was former
Governor of Mississippi Albert G. Brown (1813-1880), who pointedly exclaimed
that,
When I saw my friend standing on the
other side of the House filibustering, as I thought, against the United States,
surrounded, as he was, by admiring Whigs, I did not know what to think. It
seemed to me he had taken formal leave of his old States-Rights friends, and
gone over to the Whigs.
At a time when Congress was sharply and bitterly divided, such an accusation was bound to cause offense, particularly when aimed at someone whose stated purpose was the opposition of such piratical acts.
But while the concept of the filibuster was certainly bound up with all sorts of negative connotations – lawlessness, self-interest, barbarity, etc. – it also carried with it an air of glamor, heroism, and adventure. In the American tradition, masculinity, white supremacy, and electoral politics have long been three strands of the same dominant cultural thread. And while the leader of a filibustering expedition might have been, in certain circles in the 1850s, an object of scorn and derision, in others he inevitably became a symbol of assertive male power and the superiority of the white race. To be a filibuster, within this latter context, was understood as a fundamentally virtuous profession, particularly as it combined an aggressive brand of individualism with a sense of white entitlement to valuable natural resources whose ostensible owners were thought to be racially inferior. Holding such feelings about the practice did not mean that one couldn’t deploy it in a such a manner as to cause insult, of course. The aforementioned Congressman Brown, who referred to his colleague Venable as a filibuster in an attempt to portray him as having turned against the best interests of his country, was also among the most ardent supporters of the private conquest and subsequent American annexation of the likes of Cuba and Mexico. These kinds of ambiguous feelings towards the whole concept of the filibuster are doubtless what soon enough secured its place as the preferred term within Congress for a kind of single-minded legislative obstructionism. Within ten years later, by as early as 1863, Senators were actively referring to excessive delaying tactics as, “What is commonly called filibustering [,]” while those who found themselves accused of the same reacted with horror at the very idea. Undeniably, such behavior stood in opposition to the supposed collegiality of the Senate, not to mention the right of the majority to have its way. But it was also, in certain cases, the noblest thing that an individual legislator could do. Trying to hold back the tide of history through sheer force of will? Whatever they might have said about the filibuster in public, more than a few Senators privately aspired to such an ideal.
And the Senate leadership, as it turned out, was as wishy-washy as the rank-and-file. While, throughout this period, the rules governing debate were continually changed so as to permit the kinds of practices now commonly grouped under the heading of the filibuster – the delivery of speech that is not relevant to the question, the introduction of motions to reconsider, etc. – procedures were also successively adopted which seemed to place limits upon truly unlimited discussion. Consent agreements, for example, began to be implemented as early as the 1840s in advance of debates on particularly controversial subjects for the purpose of establishing a pre-set date for a vote. Likewise, in an effort to prevent filibuster attempts from completely disrupting the session’s schedule – arguably their very purpose – a rule was established in the early 1870s permitting questions known to be sources of controversy to be moved to the very end of the legislative calendar. At any time, of course, any one of these rules could have been done away with or altered. The Senate could have unapologetically embraced the concept of unlimited debate and tossed out whatever limitations were then on the books. Then again, its members could have alternately chosen to apply more stringent standards of relevancy to speech, applied consent agreements to every question on the docket, or simply re-adopted the previous question rule that their forebears had dispensed with so casually in 1806. The fact that they did not – that they instead chose a middle path between allowing procedural obstruction and banning it entirely – would seem to reaffirm the existence of a certain ambiguous attitude towards the filibuster. 19th century Senators were not wholly in support of the practice, particularly as it infringed upon their efforts to cultivate an air of gentility in the upper chamber. But neither were they willing to give it up altogether as a potentially rewarding piece of partisan strategy.
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