How the filibuster was invented

So long as we're talking history, I had an interesting chat this afternoon with political scientist Sarah Binder. Binder is a congressional expert who wrote a book on the filibuster, and I happened to ask her about the origination of the practice. She laughed. "It takes a bit of back story," she said.

"We all know the Constitution says the House and Senate can make their own rules," explains Binder. "So in 1789, each chamber draws up their own set of rules. And both sets of rules have a previous question motion, which is the motion that the House uses to cut off debate by majority vote."

Quick interlude here, because it confused me: The "previous question motion" refers to the motion asking whether the body should move to a vote. It's called "previous question" because the language is generally something along the lines of "shall we now move to the main question?" In other words, the motion shuts down the previous question -- hence the name. Alright. Back to Binder.

"In 1805, Aaron Burr has just killed Alexander Hamilton. He comes back to the Senate and gives his farewell address. Burr basically says that you are a great body. You are conscientious and wise, you do not give in to the whims of passion. But your rules are a mess. And he goes through the rulebook pointing out duplicates and things that are unclear."

"Among his suggestions was to drop the previous question motion. And they pretty much just take Burr's advice. And once it's gone, it takes some time for leaders to realize that they can't cut off debate anymore. But the striking part to me was that we say the Senate developed the filibuster to protect minorities and the right to debate. That's hogwash! It's a mistake. Believe me, I would've loved to find the smoking gun where the Senate decides to create a deliberative body. But it takes years before anyone figures out that the filibuster has just been created."

And once they do figure it out, of course, they could never rid themselves of it because the minority never had an interest in letting go of their advantage. Binder's history doesn't have much bearing on whether the filibuster is a good thing or a bad thing. Plenty of accidents are happy accidents. But it should put to rest the idea that the filibuster somehow represents the will of the Founders, or it was adopted as part of a conscious effort to protect minority rights. The filibuster was an accident. It has been reformed a number of times (notably in 1917, when cloture was set at 67 votes, and in 1975, when cloture was lowered to 60 votes). It can be kept in its current state, strengthened, weakened or abolished. There is nothing sacred about it.

