It has been many years since the last real filibuster was held in the U.S. Senate. In the meantime there have been numerous procedural filibusters, an interesting concept that is unique to our American political system. Here is a brief history about how the procedural filibuster came into existence.
The U.S. Constitution contains a provision that each house of Congress may determine their own set of rules and procedures. The early Senate adopted many of their rules from the British parliamentary experience. Traditional British parliamentary procedures included a section about the concept that allows a member to interrupt debate on an issue by raising a motion to call the “previous question.” If this motion is seconded and passed, then the question is put to an immediate vote with no further debate allowed. Thomas Jefferson wrote about this procedure in his Manual of Parliamentary Practice. Not surprisingly then, a similar procedure appeared in the list of rules used by the Continental Congress in 1788. In 1789 the rules adopted by the U.S. Senate also included a similar section about calling the “previous question.”
Vice President Aaron Burr, in his farewell speech to the Senate in March of 1805, recommended that the rule regarding the “previous question” be discarded since it had been used only once during the previous 4 years. When the rules were rewritten in 1806, the section about the “previous question” was omitted.
However, the rules of the Senate still granted authority to the presiding officer of the Senate, the Vice President, to use his discretion to bring to an end long, dilatory speeches and to disallow meaningless motions. In fact, John Adams, Thomas Jefferson, and Aaron Burr each used this power during their terms as Vice President.
As the years went by this power was viewed suspiciously as one that could potentially be abused. An incident in 1825 caused the Senate to revise their rules. Vice President Calhoun allowed Senator Randolph to ramble on daily over a three month period about irrelevant subjects, mostly personal attacks against President John Quincy Adams. Since Calhoun also did not like Adams he refused to exercise his power to bring Randolph’s remarks to a close. In 1828 the Senate revised their rules by requiring that all debate must be relevant to the question, but they did not eliminate the power of the presiding officer to limit debate.
That changed in 1872 when Vice President Schuyler Colfax ruled that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending matter.” At that point, then, unlimited debate on an issue became a real possibility. Real filibusters became an important tool for the minority.
Thus it stood until 1917 when Senate Rule 22 was adopted at the urging of President Wilson. The rule, which became known as the cloture rule, permitted the ending of debate on an issue with a two-thirds majority vote. The rule was first tested in 1919 when cloture was invoked to end debate in the Senate on the acceptance of the Treaty of Versailles, which ended World War I.
However, since a two-thirds majority was difficult to obtain, the use of the real filibuster increased. There are many famous instances and interesting stories regarding filibusters in the Senate over the next 50 years.
The cloture rule continued unchanged until 1975, when under President Ford and Vice President Rockefeller, Rule 22 was amended by a vote of 51-42 to allow a cloture vote to pass with a favorable vote by a three-fifths majority of the Senate membership. This lower requirement made it easier to invoke cloture on a debate to prevent a real filibuster.
However, the 1975 changes also made it possible for a filibuster to be “invisible.” With 60 votes needed to prevent a filibuster and 41 votes needed to prevent cloture, the 1975 rules changes allowed for 41 or more Senators to simply state that they intended to filibuster and the issue would be set aside. In that case the filibuster would be assumed and would not actually have to be performed. Thus, the “procedural filibuster” was born.
The advantage to this type of procedural filibuster is that other business of the Senate can be commenced without the delays and embarrassments of a real filibuster being necessary to remove the issue from further consideration. The disadvantage of this procedure is that it can potentially be abused. As a means to help prevent the abuse of the procedural filibuster, the majority leader retains the authority to force the minority to prove that they actually have the necessary votes to prevent cloture and to perform a real filibuster.
Since 1975 the procedural filibuster has been used successfully many times and has not been challenged. It is a powerful tool and one that is unique to our American political system.