The era which ultimately led to the birth of the modern filibuster commenced, more or less, at the beginning of the 1880s. Previously, from the 1840s through the 1870s, the great majority of filibuster attempts in the Senate had failed to achieve their ostensible objectives. Democrats had filibustered Whigs, Republicans had filibustered Democrats, and southern Senators of all stripes had come together to filibuster any and all legislation intended to protect the civil rights of former slaves and their descendants. But because both the Senate specifically and the federal government in general had comparatively little on their plates for the majority of this period, most of these efforts failed due to the Senate’s ability to simply wait out the occasional renegade. Possessed, as they were, of a relatively uncrowded docket, what did it matter to those seated in the chamber if a debate here or there took a few extra days to resolve? For a number of reasons, however, this began to change as the period of economic plenty and cultural quiescence commonly known as the Gilded Age (1870-1890) gave way to the Progressive Era (1890-1920) and its emphasis on corruption, regulation, populism, and economic justice. No longer content to observe the sense of collegiality which they collectively claimed to be among their defining characteristics as legislators, Senators began to filibuster more often and more ruthlessly either in support of or opposition to the great matters submitted to their scrutiny. Monetary policy, election integrity, financial regulation; the very foundations of the nation’s economy and its political system were being fundamentally re-examined, and the Senate became one of the primary battlefields in the resulting war between tradition and reform.
Lofty as this may sound, however, what it meant in practical terms was that while induvial Senators spent more and more time actually in their assigned chamber, they accomplished less and less in terms of their stated agenda. In 1893, for example, when the so-called “Hard Money” Democrats in the Senate sought to repeal the Sherman Silver Purchase Act (1890) – a piece of legislation whose purpose was actually to encourage inflation as a sop to indebted farmers and the owners of silver mines – a coalition of pro-silver Democrats, pro-silver Republicans, and agrarian Democrats came together in an effort to sink the relevant bill. The resulting campaign, the culmination of which was a forty-six-day filibuster punctuated by numerous speeches, roll call votes, and various other parliamentary shenanigans, ultimately failed, shaving over a month off the Senate’s calendar with absolutely nothing to show for it. Some fifteen years later, as the Senate set about debating the merits of what would shortly become known as the Aldrich-Vreeland Act (1908), Wisconsin Republican Senator Robert M. La Follette (1855-1925) conducted his own similarly fruitless filibuster out of a sense of outrage at the bill’s terms. The country’s major banks and corporations, he opined, had triggered the Panic of 1907 in an effort to destroy their smaller competitors, and the Aldrich-Vreeland bill looked set to effectively reimburse them for their troubles. La Follette’s response was to hold the floor for a continuous eighteen hours in the midst of an early spring heat wave, delivering speech after speech with only minutes of respite in between by way of repeated roll call motions. In the end, however, notwithstanding his tenacity, La Follette’s effort was defeated when his progressive ally, the blind Oklahoma Democrat Thomas Gore (1870-1949), accidentally yielded the floor to a Senator who had just moments before exited the chamber. The Aldrich-Vreeland Act thereafter became law, regardless of one man’s attempt to stop it.
The membership of the Senate tended not to think twice as to the propriety of such attempts. The majorities who had to contend with filibusters were no doubt frustrated at being forced to go to such lengths in order to pass bills which enjoyed more support than opposition. And there were surely those among their number who still found the very notion of procedural obstruction distasteful. But by the early 1880s – and certainly by the end of the 1910s – the concept of unlimited debate was so ingrained in the lore and the character of the Senate that most members were willing to tolerate the occasional inconvenience if it meant preserving a basic principle which they held to be essential. As resigned as Senators were to the continuation of the filibuster, however, the American people were decidedly not. They noticed – indeed, how could they not? – that their representatives in the Senate were talking more and more and accomplishing less and less, and it was only a matter of time before they made their frustration well and truly known. The adoption of the 17th Amendment in 1913 and the subsequent shift in the Senate from legislative appointment to popular election – the circumstances and effects of which will be discussed at length in weeks to come – helped set the stage for this confrontation, specifically as it made Senators accountable to the general public rather than fellow party members. But it was the events of WWI (1914-1917), the groundswell of popular patriotism that resulted, and a president whose ultimatum to the Senate had the force of public discontent behind it which collectively resulted in the birth of the modern filibuster.
The United States did not enter formally WWI until 1917, of course, and the Senate vote on a declaration of war was not a particularly close one. But as early as 1915, years before an American soldier would set foot on the battlefields of Europe, the American republic found itself substantially involved in the conflict. Mainly, their early ties were economic in nature. Having declined to become involved in the war at its outset, the United States was instead free to provide large bank loans and valuable supplies to whichever nation was inclined to apply. In practice, Britain’s large surface fleet ensured that American merchant vessels were blocked from entering German ports, thus effectively cutting off American business interests from access to the German war economy. Because the contemporary German navy was unable to respond in kind, most American commerce in the opening years of the war was accordingly conducted with Britain and France. Unwilling to allow this advantage to go unchecked, however, the German navy in turn sought to deploy its submarine fleet – small at first, but with a tremendous capacity for expansion – for the purpose of sinking civilian merchant vessels as they approached British ports. As the British seemed intent on starving the Germans into submission, so it was felt by German military authorities to be both appropriate and substantially necessary to treat the British in kind. The result, in the immediate, was something of a free-for-all. Notwithstanding the complaints levelled by the administration Woodrow Wilson (1856-1924) that the actions of the European belligerents ran counter to several international agreements protecting free navigation for neutral vessels, American merchant sailors found themselves the victims of both British seizure and German attack. The British, in the end, gave up harassing American vessels after President Wilson made known the intensity of his displeasure. But the Germans – with few other options at their disposal – made only a series of qualified promises, none of which they ultimately kept.
Near the beginning of the year 1915, the German navy sank three American merchant ships. At the time, having no cause to think otherwise, President Wilson concluded that these attacks were accidental, that the Germans were not purposefully targeting Americans, and that some manner of financial settlement could be reached at war’s end. In May of that year, famously, a German submarine sank the British ocean liner RMS Lusitania on the contention that it had entered a declared warzone and that it was carrying – in addition to civilian passengers – almost two hundred tons of war munitions. Of the one thousand one hundred and ninety-eight passengers who were killed, one hundred and twenty-eight were American citizens, leading President Wilson to voice his anger and demand that such incidents not be repeated. The following March, in 1916, a ferry called the SS Sussex was torpedoed while attempting to cross the English Channel, the result of which was a death toll of fifty and a list of injured that included several more American civilians. Wilson responded this time by demanding a final halt to such unrestricted attacks or else the United States would break off relations with Germany entirely. The following month, fearful that the Americans might end up joining the Entente and declaring war, the German government accordingly delivered the so-called “Sussex Pledge.” Passenger ships would no longer be targeted; merchant vessels would only be fired upon once the presence of war materials had been confirmed; and provisions would be made for the rescue of the survivors of such merchant vessels as were sunk. Satisfied, evidently, Wilson let it go at that.
By 1917, the calculus of victory had substantially changed from the perspective of the German High Command. Whereas, in 1916, the threat of American intervention on the side of the Entente was thought to outweigh whatever advantage might have been gleaned from keeping American merchant vessels from reaching British ports, German military authorities were now of the opinion that antagonizing the United States might have been worth drawing the nation into the war if it meant effectively starving the British into submission. Indeed, they even wagered that Britain could be substantially defeated before the Americans had a chance to effectively mobilize. The key, of course, was the aforementioned submarine fleet. If German submarines were once again permitted to attack American merchant vessels without any manner of restriction, the war might soon be brought to an end by way of a resounding German victory. With this thinking in mind, German military authorities – who, in 1917, were effectively in control of the national government – advanced two distinct but complimentary policy initiatives. First, as discussed above, they elected to resume a course of unrestricted submarine warfare as of January 1917, thus entirely abrogating the terms of the Sussex Pledge and rendering any and all American merchant vessels valid targets of predation. And second, by way of a coded telegram, the German Foreign Office made an offer of military alliance and financial support to the government of Mexico for the purpose of recovering – on Mexico’s part – the previously ceded territories of New Mexico, Texas, and Arizona.
There was, to be sure, a certain logic to the German position. If Mexico could be convinced to declare war on the United States at the same time that German submarines began once more sinking American merchant vessels bound for Britain, American troops and equipment which might otherwise be dispatched to Western Europe following a declaration of war on Germany would instead be tied down in a defense of the nation’s lengthy southern border. Thus free to strangle the British war effort without external interference, Germany might then have secured an unquestioned victory before the United States had a chance to turn its attention to Germany itself. Indeed, there was really only one problem with the plan as a whole. Namely, that Mexico – still in the midst of a civil war between various radical and conservative political factions – was in no state to carry on a successful war with the American republic. And even if it had been – even if the Mexican armed forces were of a comparable size to those of the United States, and similarly armed, and possessed of a dependable source of income – there was simply no way that a Mexican occupation of the states of New Mexico, Texas, or Arizona – all of whom contained English-speaking majorities – could have been sustained in the long term. Aware of all of this – and substantially unconvinced of the sincerity of German promises of financial assistance – the government of Mexican President Venustiano Carranza (1859-1920) accordingly declined to take up the German offer.
But while the Mexican refusal to declare war on the United States certainly spared the latter no small amount of trouble – not the least because recent American efforts to intervene military in Mexico had proven to be largely ineffectual – the revelation of the German offer itself nevertheless placed President Wilson in a substantially awkward position. So long as the coded telegram remained an object of public speculation – that is, something advocated by the press but unconfirmed by either the Mexican or German governments – the Wilson Administration could reasonably dismiss it as a hoax on the part of certain interested parties intent of driving the United States to declare war on the German Empire. But from the moment that Germany’s Foreign Minister, Arthur Zimmerman (1864-1940), confirmed the document’s legitimacy during a press conference in March, the United States government had little choice but to respond. German submarines had already sunk two American merchant ships by the end of the previous month, and shipping firms were already going so far as to hold their ships in port indefinitely. Wilson had refused previous proposals that American merchant vessels be armed; indeed, he’d spent most of the previous three years of his presidency doing all that he could to keep the United States out of the war in Europe. But now, with American commerce once again suffering and public outrage mounting as a result of the “Zimmerman Telegram,” he seemed to have no choice. Notwithstanding his prior position, Wilson asked Congress to draft a bill which would mandate the arming of the American merchant fleet. Unsurprisingly – in light of contemporary public opinion – the resulting legislation sailed through the House. When it reached the Senate, however, it very quickly became the subject of intense disagreement.
This isn’t to say that there wasn’t
also majority support in the Senate for a bill authorizing the arming of American
merchant vessels on the high seas. On the contrary, of the ninety-six Senators
then sitting in the upper chamber, eighty-five of them made it clear that they
were in favor of the proposed legislation. But because the remaining eleven
were very much against it – and because, so long as they held the floor between
them, they could prevent it from ever coming to a vote – the measure was
effectively defeated when Congress adjourned on the afternoon of March 4th,
1917. The obstructionists, led by the aforementioned Senator La Follette, were
keen to prevent any act which might have led to the United States becoming
embroiled in the war in Europe, and so they accordingly defaulted to the
accustomed Senate strategy of simply refusing to yield the floor until the
offending bill was withdrawn from consideration. Thus effectively stymied by
parliamentary regulations over which he had no control, Woodrow Wilson then
proceeded to exercise one of the great powers of the American presidency: the
bully pulpit. In a statement published in The New York Times on March 5th,
1917, the President of the United States made known the depths of his
displeasure. As to the previous day’s events in Congress, he reflected that,
More than 500 of 531 members of the
two houses were ready and anxious to act; the House of Representatives had
acted, by an overwhelming majority; but the Senate was unable to act because a
little group of eleven senators had determined that it should not […] The
Senate of the United States is the only legislative body in the world which
cannot act when its majority is ready for action. A little group of willful
men, representing no opinion but their own, have rendered the great Government
of the United States helpless and contemptible.
The remedy? There is but one remedy.
The only remedy is that the rules of the Senate shall be so altered that it can
act. The country can be relied upon to draw the moral. I believe the Senate can
be relied on to supply the means of action and save the county from disaster.
Bearing in mind – based on his words
and deeds of the previous three years – that Woodrow Wilson did not actually
want his nation to be dragged into a war in Europe, the public statement cited
above had exactly the effect he intended. Editorials began appearing that same
day in various publications calling for exactly the remedy that Wilson proposed
and excoriating the obstructing Senators as, “tramps” and “wretches” eager to
reject, “Their country’s conscience and courage in order to make a Prussian
holiday.” Later still on March 5th – in a frankly impressive display
of promptness – Congress re-convened for a special session, whereupon Senate
Majority Leader Thomas Martin (1847-1919) introduced a motion to amend the
standing rules of that body so as to allow for a vote capable of limiting
debate. Three days later, on March 8th, the so-called “Martin
Resolution” was accordingly adopted by a vote of seventy-three to six. Being a
compromise between those Senators who preferred a return to the procedure
embodied by the previous question rule and those who opposed any limitations on
debate but felt pressured by President Wilson’s invocation of public opinion to
make some manner of concession, the Martin Resolution allowed for a vote of
two-thirds of those present in the chamber to invoke what is called “cloture.”
Thereafter, no Senator would be permitted to speak upon the motion under
consideration for more than one hour and amendments could only be made as the
result of unanimous consent. Filibusters were still possible, to be sure, so
long as two-thirds of those present failed to agree to prevent them or to end
them. But the Senate would no longer be forced to simply wait out every
potential obstructionist. If two-thirds of those present decided that it was
time to proceed to a vote, the filibuster would be broken and a vote would
immediately commence.
Granting that this rules change represented a significant break with Senate precedent – abandoning, as it did, a tradition stretching back nearly one hundred years – the long-term effects of the Martin Resolution took some time to be felt in earnest. In the decade between its adoption in 1917 and 1927, for example, a cloture motion was voted on by the Senate a mere ten times, and of those it was sustained only four times in total. The first such occasion – and perhaps the most famous – came in 1919 when the Senate voted to end debate on the Treaty of Versailles only to then reject it owing to seemingly intractable differences between the policy priorities of President Wilson and Senator Henry Cabot Lodge (1850-1924). The three subsequent occasions came pursuant to somewhat less weighty legislation, though the bills in question were very characteristic of their era. In 1926, the Senate invoked cloture and then voted against joining the Permanent Court of International Justice; in 1927, it invoked cloture again so that it could reject an early version of what would become one of the Glass-Steagall banking acts; and then it did so for a second time in ‘27 before voting to establish the Bureau of Prohibition as an independent entity within the Department of the Treasury. In the nearly forty years that would follow, such occasions became even rarer still.
Between 1927 and the beginning of 1964, a cloture vote was sustained in the Senate only once, when Senators opted to end debate and then voted to ratify the controversial Communications Satellite Act of 1962. Evidently, while a remedy was now in place to limit debate and thus stave off the threat of the filibuster, Senators remained generally reluctant to make use of it. In part, this was surely because of the high threshold that had been set. Establishing a viable consensus among two-thirds of between ninety-eight and one hundred legislators was no mean feat, and one whose inherent challenge surely scared off many potential seekers of cloture during these same decades. But there was also some remaining opprobrium, to the thinking of some Senators, in the very notion of limiting debate. Notwithstanding the social, political, and cultural turbulence that the nation experienced over the course of the Progressive Era, WWI, the Great Depression, and WWII, certain Senators – perhaps even a majority – still considered their chamber to be a bastion of collegiality and mutual respect. Any more than disruptive filibusters were to be encouraged among the rank and file, motions to forcibly cut off debate doubtless appeared too aggressive – too uncongenial – to even contemplate.
Southern Senators in particular attempted to develop this thinking into a sort of unquestioned civic norm. Their goal, they claimed, was the protection of minority rights and freedom of debate. Issues of great national importance needed to be talked out to the fullest, and so they were against cloture, categorically, in every possible application. In actual fact, however, this protestation of principle was nothing more than careful strategy. If Southern Senators, to a man, resolutely refused to invoke cloture, then it would become that much easier for them to stand against cloture attempts when they themselves attempted a filibuster. That they also refrained from filibustering any legislation but that which pertained to civil rights made clear enough their true intentions. They wanted to be able to block votes on such undesirable measures as they knew a majority would support while at the same time making the legitimate means of breaking their legislative firewall appear unprincipled and overly hostile. It was a substantially transparent set of tactics, to be sure, and one which did not always bear up under pressure. That being said, such efforts on the part of the Senate’s Southern contingent succeeded far more often than it failed. In the nearly forty-year period between 1927 and 1964, Southern filibusters defeated anti-lynching legislation (in 1922, 1935, and 1938), anti-poll-tax legislation (in 1942, 1944, and 1946), and various other civil rights bills (in 1946, 1950, 1957, 1960, and 1962), all without cloture being invoked a single time. The filibuster, in essence, became a single-use tool, and cloture, while still valid, became too politically toxic to touch.
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