The Filibuster, Aaron Burr, and Cato
stranger than fiction
In the U.S. Senate, a longstanding and controversial process called the filibuster enables the minority party to obstruct legislation by continuing debate, more or less ad infinitum, thus keeping a bill from coming to a vote. Any motion to shut off such debate must be passed by a three-fifths supermajority.
Because the filibuster-ers don’t have to keep talking steadily in order to obstruct passage—they can tag-team and take breaks now, but more importantly, they can just threaten to filibuster—the procedure’s mere existence can kill laws that have strong representative support. There are exceptions, but getting certain laws through the Senate nowadays effectively requires unanimous consent or a three-fifths majority, making it hard for a normal majority to pass legislation that a minority opposes. Though rarely actually carried out, the filibuster has thus come to pretty much define important parts of Senate procedure.
Some who condemn this anti-democratic situation see its origins in the institution of racial slavery. Senator Ed Markey of Massachusetts, for example, tweeted the other day “the filibuster was created so that slave owners could hold power over our government.”
There’s a tendency, partly tactical, I suspect, to trace the origins of every anti-democratic thing that people like me oppose—equal numbers of senators from each state, the electoral college, the second amendment, abuse of the filibuster—to the vile institution of slavery. The idea must be something like “Slavery is widely recognized as categorically worse than anything else in the country’s founding, and nobody can defend the filibuster once they see that they’re really defending slavery.”
However effective that angle may be in winning friends and influencing people—I doubt it’s effective at all—it’s led to something of a delusion regarding the original intent of the Senate rules that enable the filibuster.
You can always say that everything in the U.S. was enabled by slavery. You can even be right about that, but, if so, why bring up the filibuster, since everything else must also have the same evil origin? I’d like to leave aside for a moment the overarching idea that all things American originate in slavery and instead consider whether the creation of the filibuster has some particular relation to the promotion of racial slavery in the U.S.
It doesn’t seem to, really. Which doesn’t mean there’s no good argument against it.
For one thing, the trick goes way back. Cato the Younger was evidently a big filibuster guy, pushing off votes in the Roman Senate by refusing to stop speaking.
More relevant to our own Senate filibuster is Aaron Burr, being interesting, as always. Burr did enslave people, as did his famous rival Hamilton, but there’s no direct connection that I can see between his status as an enslaver, which in no way distinguishes him from most other men of his type, and what he did to enable the filibuster.
I’ve recently learned, from reading a transcript of the testimony of Professor Sarah Binder, who spoke in 2010 before a Senate committee, that when Burr was serving as Thomas Jefferson’s Vice President, and therefore presiding over the Senate—even while wanted on charges related to killing Hamilton in a duel!—he complained to the body about its rules. He didn’t like the rules’ chaotic nature. Haranguing the senators for sloppiness and redundancy, Burr focused in large part on something called a “previous question” motion, which he thought they should get rid of.
In its original state, in the British Parliament, the “previous question” motion wasn’t used to shut down debate. But in the U.S. Congress of Burr’s day, it was starting to morph into the version that the House now uses to end debate, on a simple majority, and bring issues to a vote.
Burr wasn’t trying, that is, to enable the current situation in the Senate. And yet it was he who advised the Senate to get rid of the “previous question,” which was little used for any purpose at the time. When the senators took his advice, they removed a form of motion that could have allowed the body to end debate, and suddenly the Senate had no prescribed way to end debate at all—not even the three-fifths rule that it now uses to end debate (which is known as “cloture,” annoyingly enough). The three-fifths rule didn’t come until 1917, in the form of an even more onerous two-thirds rule, which was reformed down to the current three-fifths in 1975.
Thus was the ground laid by Aaron Burr for the Senate filibuster. And yet according to Professor Binder, the senators who took his advice didn’t intend to lay that ground.
They did it by accident. They didn’t think it through.
That feels more or less right to me.
These people weren’t exactly rocket scientists.
Professor Binder didn’t mention this in her testimony, but after his effort to clean up the Senate rules, Burr left office and started raising and training a private army, with somewhat mysterious intent, possibly hoping to invade Mexico. He thus inaugurated an American tradition that would continue with, for example, the private military efforts of William Walker in Central America. I bring it up because that kind of freebooting, unsanctioned by the U.S. government, was known in the day as … filibustering!
So Burr did, in a way, carry out our first filibuster, just not in the way we mean. As slang for obstructing a vote, the term was adopted after his time.
Meanwhile, back in the Senate, there wasn’t a lot of filibustering before the Civil War, so the idea that it was created as a ready tool by which slavery states might control the country seems fanciful. The Senate didn’t have that much to do in those days anyway. Nobody even threatened to use the power to talk indefinitely until 1837.
A notable example did occur in 1841, when Henry Clay, Whig of Kentucky, a slavery state, introduced a bill to re-charter a national bank, and Democrats led by William King of Alabama, also a slavery state, threatened a filibuster. The debate had a somewhat meta feature, relevant to threats made this week by Republican Senator Mitch McConnell, the minority leader, in response to suggestions that the Democratic majority might seek to reform the filibuster and cloture rules. In the 1841 debate, Senator Thomas Hart Benton, Democrat of Missouri, and others argued that the filibuster was constitutional, thereby implying that getting rid of it would be unconstitutional. Much discussion has since devolved on the idea that the procedure is inherent in the founding purpose of the Senate. McConnell pretends to believe in that fantasy too.
Anyway, it was only after the Civil War, with slavery abolished, that the filibuster started becoming such a big deal. It’s perfectly realistic to associate the filibuster with the long, grim preservation of Jim Crow. Democrats of the former slavery states often used the procedure to obstruct anti-lynching laws and other federal civil-rights measures that had majority support.
One of the most famous examples occurred in 1957, when Senator Strom Thurmond, Democrat of South Carolina, held the floor for more than 24 hours to obstruct a civil rights act intended to redress systematic suppression of black voters in southern states. Thurmond prepped by taking steam baths to draw liquid out of his system; he also had a bucket ready in the cloak room. In the end he used the actual bathroom, but only once, briefly yielding the floor to an ally, Senator Barry Goldwater, Republican of Arizona, in order to trot to the urinal; the event came to an end mainly because senators got worried about the future of Thurmond's kidneys. And defenders still call the filibuster a hallmark of the greatest deliberative body in history.
In 1964, a tag team of southern Democrats, including Thurmond, filibustered a better-known Civil Rights Act for sixty days. They had the support of Goldwater, who was running for president, and other new-right Republicans.
But the filibuster has been put to other uses too. In the 1930’s, Senator Huey Long, demagogic Democrat of Louisiana, reveled in epic filibusters to object to aspects of New Deal legislation, largely from the left. Long’s overarching desire was always to control patronage in his state—yet he criticized the Social Security program, for example, on the grounds that the states would be sure to carry it out unfairly for black citizens.
In 2014, Senator Ted Cruz, Republican of Texas, did a narcissistic parody of the filibuster by reading “Green Eggs and Ham,” among other things, after debate on the Affordable Care Act had already concluded, but a true old-school filibuster was carried out by Senator Chris Murphy of Connecticut, speaking for fifteen hours in 2015 in an attempt to force consideration of gun-control legislation.
And in 2010, Senator Bernie Sanders, independent of Vermont, gained national attention when he spoke for more than eight hours. Sanders was opposing extending the George W. Bush-era tax cuts. That bipartisan, majority legislation had been put together by McConnell and Vice President Joe Biden.
The U.S. Senate. Weird scene.
