Senate Filibuster Was Created By Mistake

UPDATE 4: Sarah Binder explores the questions, “Why did the Senate go nuclear now, and what will be the consequences for future majorities eager to further curtail the filibuster?”

UPDATE 3: Thomas Mann writes that “the routinization of the filibuster under Republican Leader Mitch McConnell (R-Ky.) — with a 60-vote threshold for action the new norm, rather than the exception — is a perversion of the intentions of the framers of the Constitution and Senate traditions.”

Thomas Mann that “the routinization of the filibuster under Republican Leader Mitch McConnell (R-Ky.) — with a 60-vote threshold for action the new norm, rather than the exception — is a perversion of the intentions of the framers of the Constitution and Senate traditions.”

UPDATE 2: Sarah Binder writes that “this is big” in another new post on Monkey Cage blog, “Boom! What the Senate will be like when the nuclear dust settles.”

UPDATE: Sarah Binder has a new post on Monkey Cage blog, in which she explains why GOP targeting of the D.C. circuit may not be as unprecedented as some think and why it would be difficult to parse out “acceptable” filibusters from those that aren’t. “We’ll learn soon enough,” Binder writes, “if Democrats have the guts to go [nuclear] and, if so, whether that compels any Republicans to stand down.”

Over the past few weeks, Senate Republicans have filibustered President Obama’s three nominees to the Court of Appeals for the D.C. Circuit, claiming alternatively that Obama was trying to pack the court and characterizing the court’s caseload as lighter than other circuits. News reports now say that Senate Majority Leader Harry Reid is considering changing the filibuster rule for some executive and judicial nominees, the so-called “nuclear option.

In 2010, Brookings Senior Fellow Sarah Binder, an expert on Congress and congressional history, testified to the Senate that “the filibuster was created by mistake.”

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.

Binder makes additional insightful points about the origin and historical uses of the Senate filibuster in that testimony to the Senate Rules and Administration Committee.

She also calls attention to another of Obama’s recent judicial nominees: Ronnie White for the U.S. District Court for the Eastern District of Missouri, which is yet another window, she says, on the “evolving wars of advice and consent.”

Binder also has data on whether Senate Minority Leader Mitch McConnell and the Senate GOP have “played fair” on President Obama’s nominees.

For additional analysis about the filibuster, see Binder’s “What Senate cloture votes tell us about obstruction,” in which she wrote:

Ultimately, the rise of the 60-vote Senate in a period of polarized parties signals that the minority party has mastered the art of blocking the majority. Sometimes, the minority leader drives the opposition in his conference; other times, he follows it. Regardless, what’s true of the tango is also true of the Senate: It takes two parties to make it look good. The minority party no doubt often feels that the majority leader is too quick to call for a vote, and its members might reasonably oppose cloture on that ground. However, my sense is that far more often, majority leaders resort to cloture when they find themselves unable to cajole the minority party to cooperate. As the Senate GOP conference fractures between pragmatists and ideologues, securing GOP consent will likely become even harder. Counting cloture votes remains an imperfect — but still valid — method of capturing minority efforts to block the Senate.

Get all of Sarah Binder’s research and commentary about the Senate filibuster on her bio page.