Senators from both sides of the aisle are lamenting the death of the filibuster for Supreme Court nominations, arguing that its demise will further exacerbate partisan dysfunction and congressional gridlock. But the end of the filibuster is a symptom of the death spiral of the Senate into permanent polarization, not its cause.
The history of the filibuster, as recounted by Josh Chafetz, suggests that it was a historical accident and only became a tool for permanent minority obstruction relatively recently. Article I, Section 5 of the Constitution gives each house of Congress the authority to set the rules for its own proceedings. And, in the early years of the Republic, senators could end debate by calling for the “previous question,” which required a simple majority vote. Furthermore, Thomas Jefferson, described by Chafetz as “the great parliamentarian of the early Republic,” said, “No one is to speak impertinently or beside the question, superfluously or tediously,” and, “if repeated calls do not produce order, the Speaker may call by his name any member obstinately persisting in irregularity, whereupon the house may require the member to withdraw.” (Chafetz has debated the history and constitutionality of the filibuster with Richard Arenberg, who offers a different perspective.)
The Senate abolished the previous question motion in 1806, at the urging of Aaron Burr. But this wasn’t because the Senate sought to enshrine a principle of unlimited debate. Instead, Burr thought that the rule wasn’t needed because it was rarely used. As political scientist Sarah Binder explained in testimony before the Senate in 2010, “The history of extended debate in the Senate belies the received wisdom that the filibuster was an original, constitutional feature of the Senate. The filibuster is more accurately viewed as the unanticipated consequence of an early change to Senate rules.”
Following the 1806 rule change, a minority could begin to use the filibuster to obstruct actions in the Senate. But that didn’t really happen. In fact, for most of American history, majorities who held both the House and the Senate were generally able to get through nominations and laws, as the Framers intended.
Scholars debate the lessons of early congressional history. Some point to a 1790 debate over where to locate Congress as the earliest example of delay tactics akin to a filibuster. Others mention early master obstructionists, such as Virginia’s John Randolph and South Carolina’s John C. Calhoun. For example, as Erwin Chemerinsky and Catherine Fisk explain, Randolph had “compiled such a record for protracted irrelevant talk during his service in the House and his subsequent brief tenure in the Senate that Thomas Jefferson used the generic term ‘a John Randolph’ to describe one who protracted the proceedings of Congress.” And, as Chafetz notes, Calhoun “repeatedly used” delay tactics “in an attempt to protect the interests of the Southern states.”
Chemerinsky and Fisk also point to specific examples of early filibusters in antebellum America—for instance, in fights over patronage positions on the Congressional Globe and in a battle over the national bank. By 1863, the filibuster—as an exercise in obstruction—had acquired its official name. Nevertheless, as Chafetz explains, filibusters were “relatively rare in the nineteenth century.” And, Chemerinsky and Fisk add that “almost every filibustered measure before 1880 was eventually passed.” So, as late as 1880, the filibuster did not yet function as a regular veto by a Senate minority. But the Senate’s workload increased significantly after the Civil War, as the role of the national government grew. As a result, the costs of the filibuster greatly increased.
Senate concerns about ongoing obstruction came to a head in 1917, in a debate over a bill that would have armed merchant ships in the run-up to American involvement in World War I. As Will Englund explained, this was intended to protect the ships from German U-boats. A group of 11 progressive Senators—led by Senator Robert La Follette, a Republican from Wisconsin—blocked the bill. President Woodrow Wilson countered, “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 Senate then adopted the cloture rule, which provided a way of cutting off debate and ending a filibuster with a two-thirds vote.
Despite this rule change, the filibuster did not yet function as a de facto super-majority requirement for all major legislation. Take the New Deal era, for example. As Chafetz notes, Democrats didn’t have a filibuster-proof majority at the beginning of President Franklin D. Roosevelt’s first term. Nevertheless, no cloture motions were filed during this period, and Congress passed several landmark pieces of legislation, including the National Industrial Recovery Act, the Glass-Steagall Act, the Agricultural Adjustment Act, and the Securities Act.
As Chafetz explained, senators did deploy the filibuster in one important context—civil rights. Senator Strom Thurmond filibustered the Civil Rights Act of 1957 for 24 hours and 18 minutes. Less than a decade later, Southern senators used the filibuster to hold up the Civil Rights Act of 1964 from February through June—a total of 60 Senate working days. Both bills ultimately passed. Southern senators also filibustered the Voting Rights Act of 1965, the Fair Housing Act of 1968, and the Equal Opportunity Act of 1972.
Senators also used the filibuster to block Judge Abe Fortas’s nomination as chief justice of the United States. On June 26, 1968, President Lyndon Johnson nominated then-Justice Fortas to succeed Earl Warren as chief justice. However, during Fortas’s confirmation battle, senators discovered that Fortas had received a seminar fee from American University that was equal to 40 percent of his Supreme Court salary. Senators filibustered his nomination, and, in October 1968, the Senate cloture vote failed by a 45-43 margin. (This was one of four cloture votes for a Supreme Court nominee; the other three were for William Rehnquist in 1971 and 1986 and for Samuel Alito in 2006.) Johnson then withdrew Fortas’s nomination.
In the closing decades of the 20th century, minority obstruction in the Senate rose. Statistics from former Senate staffer William Dauster bear this out. From 1917 through 1970, the Senate only filed 58 cloture petitions (roughly one per year), voted on only 49 of them (less than once per year), and invoked cloture only 8 times (once every seven years). Between 1971 and 2006, those number rose to 26 cloture petitions filed per year, 18.5 petitions voted on per year, and cloture invoked 7.5 times per year. And this is despite a reform in 1975 that lowered the cloture threshold to its current 60-vote number. And, finally, between 2007 and 2014, those numbers rose again to 80 cloture petitions filed per year, 62 petitions voted on per year, and cloture invoked 42 times per year.
Today, just about all major legislation must meet the 60-vote cloture requirement. In the age of partisan polarization, this 60-vote requirement is often tantamount to a legislative death sentence. Gone are the days when the filibuster might promote debate and compromise. Instead, it’s just one more opportunity for paralysis.
Some scholars argue that the filibuster itself is unconstitutional because the Framers meant to enshrine majority rule into Article I of the Constitution. However, concerns about the filibuster’s constitutionality aside, if the goal is to promote deliberation and compromise, there are other approaches short of the 21st century filibuster that would do this more effectively. For example, Chafetz suggests the “declining filibuster,” which would slowly decrease the number of votes needed for cloture as debate progresses until a bare majority is enough, or some version of a “suspensory filibuster,” which would permit a Senate minority to delay a majority-supported proposal, but not defeat it.
Of course, the Senate is unlikely to pass these measures. As a result, it’s time to acknowledge that the cause of the breakdown in the Senate isn’t the end of the filibuster, but polarization in the country—which political scientists Nolan McCarty, Keith Poole, and Howard Rosenthal suggest is as extreme in Congress in recent years as it’s been since the decades after the Civil War and Reconstruction. And, if polarization is, indeed, the cause of the Senate’s problems, then there is no easy solution.
Because of the “big sort,” like-minded people are segregating themselves into the same geographic and virtual communities. Furthermore, the rise of filter bubbles, Facebook sorting algorithms, and “fake news” have polarized public discourse, and the decline in trust in neutral media mediators has led to the ability of each political tribe to converge around a shared agreement of facts. These trends make public deliberation and reasoned compromise all but impossible. The causes of polarization must be addressed at their root. But, in a government of “We the People,” the root cause is us.