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The Founders against the Filibuster
What Hamilton warned about
“But it will never get past the Senate.”
This phrase or its equivalent has for decades greeted nearly every proposal for reform in the way America conducts its public business. Regardless of which party has controlled it, the Senate has been the place where good ideas go to die, victims of arcane rules surrounding the filibuster that make a supermajority of 60 percent the de facto requirement for passage.
Alexander Hamilton would have been appalled. Which might seem odd, since conservatives have typically defended the filibuster, and Hamilton is the patron saint of American conservatives.
Yet Hamilton believed that the purpose of government was to govern, not to be kept from governing. And that in a republic, the majority must not be prevented from governing by a minority.
Hamilton felt so strongly about this that he and James Madison, who felt the same way, engineered the overthrow of America’s first national government, precisely on account of its inability to enforce majority rule. The Articles of Confederation, the constitution of that first government, granted each of the thirteen states equal weight in its Congress; additionally the Articles required supermajorities of nine states for approval of important measures. Together these provisions allowed the five smallest of the thirteen states, with total population less than ten percent of the country as a whole, to block the will of the other ninety percent. The situation was even worse in the matter of amendments to the Articles, which required a unanimous vote of the states.
Hamilton judged this the height of absurdity. “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser,” he wrote in The Federalist, the series he coauthored with Madison and John Jay, against the Articles and in favor of the new constitution he, Madison and some fifty others had written to replace them.
Hamilton rejected the argument commonly advanced in favor of the Articles’ high bar for approval of legislation: that it fostered stability. This was simply wrong, Hamilton said. “Its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority.” Governments were elected to make decisions. “The public business must, in some way or other, go forward.” And governments must not be held hostage by minorities. “If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority, and thus the sense of the smaller number will overrule that of the greater.” No government could be effective under such constraints. “Its situation must always savor of weakness, sometimes border upon anarchy.”
Hamilton’s arguments carried the day. The Articles of Confederation were junked, replaced by the new Constitution and its energetic new Congress. But entropy afflicts political systems much as it does physical systems, and disorder crept into the operations of the legislature. Aaron Burr—who killed Hamilton in a duel in 1804—sought to reduce the disorder in the Senate, where as vice-president of the United States he served as presiding officer. Burr streamlined Senate rules, eliminating redundancies and retiring rules rarely used.
In doing so, however, he inadvertently left a loophole for endless speeches. No one at the time thought much about it, nor did anyone for many years take advantage of the loophole to stymie legislation. In 1837 a group of Whig senators spoke at length to prevent the repeal of an earlier censure of Andrew Jackson, but this was a resolution rather than a law. Only in 1841 did an opponent of a new Bank of the United States rise to block Henry Clay’s attempt to charter the bank, declaring he would speak all winter if necessary to keep Clay’s measure from coming to a vote. Clay withdrew the bill.
The term “filibuster” had entered the American political lexicon from a different direction. The Spanish filibustero, meaning freebooter or pirate, was applied to Americans who fomented insurrections in Latin America. President-general Santa Anna of Mexico gave no quarter to captured American rebels in Texas, condemning them as filibusteros. William Walker, the most notorious of American filibusters, met his fate before a Honduran firing squad.
Opponents of the legislative tactic applied the label to lawmakers who hijacked the business of the Senate, but it stuck, rather, to the tactic itself. Even then, though, the maneuver was threatened more often than actually employed. The Senate remained small and clubby—Gilded Age critics called it the “millionaires’ club”—and the members devised ways to get along without paralyzing the institution or jeopardizing essential national interests.
This changed after the United States entered the world arena in the twentieth century. Following German submarine attacks in the Atlantic in 1917, Woodrow Wilson asked Congress for permission to arm American merchant vessels. A dozen isolationist senators filibustered the measure. Wilson, a keen student of parliamentary procedure, arranged to silence them by a new Senate rule allowing cloture—the closing of debate—upon the vote of two-thirds of senators present.
The next half century saw the filibuster used to delay Franklin Roosevelt’s New Deal, to protest Dwight Eisenhower’s transfer of tidal lands and their oil to coastal states, and to impede efforts by various administrations to enact civil rights reform. The climax of the fight over the Civil Rights Act of 1964 came when Lyndon Johnson put together a bipartisan supermajority for cloture and compelled a vote on that historic measure.
By then there was broad agreement that the filibuster needed reining in. In 1970 the upper house adopted a two-track system that allowed other Senate business to proceed while a filibuster was being waged against a particular bill.
This reduced the power of filibusters but increased their number. Previously reserved for only the most important bills, filibusters now were mounted against all manner of measures.
In response the Senate modified the rules for cloture, reducing the threshold of two-thirds of senators present to three-fifths of all senators—that is, 60 votes.
Three further changes brought the Senate to where it is today. To save time—ironically—senators allowed virtual filibusters to replace speech marathons. The budget process was reformulated to place it largely beyond the reach of filibusters. And nominations to executive and judicial offices were similarly exempted.
At present, the quotidian business of government moves through the Senate without inordinate delay. Revenues and taxes get appropriated and levied; judgeships and executive slots get filled.
But other meaningful legislation in the Senate has become nearly impossible. With 60 votes required for passage, most bills are rightly pronounced dead on arrival.
Would-be reformers—the heirs of Hamilton and Madison—have sought to mitigate the anti-majoritarianism of the Senate. None have gone so far as those founders did in proposing a new constitution, but many have argued for weakening the filibuster or doing away with it altogether.
These filibuster opponents have typically been frustrated members of the then-majority party in the Senate, where not since the immediate wake of Watergate has either party held 60 seats. (Briefly in 2009-10, two independents caucused with 58 Democrats, giving Barack Obama the 60 votes he needed to win passage of the Affordable Care Act.) When the majority switches from one party to another, so do the arguments about the filibuster.
Yet the complaints haven’t died, and they probably won’t die until the filibuster does. Many defenders of the filibuster cite the stability argument Hamilton rejected; others simply worry about swapping a known system for something unknown.
But a filibuster-free Senate isn’t the terra incognita it is often portrayed as being. We’ve been there before, or into territory quite similar. Certain things can be said with fair confidence:
First, a Senate without the filibuster would operate as the framers of the Constitution intended. The parliaments they were familiar with allowed simple majorities to have their way on matters of legislation. (The Congress under the Articles of Confederation wasn’t a parliament but a confederation of states.) On non-legislative matters the Constitution allowed exceptions to the majority rule. A two-thirds supermajority of the Senate is required for conviction on impeachment (a judicial function). Two-thirds of the Senate is needed to ratify treaties (a constitutional function, in that treaties became part of the supreme law of the land). Two-thirds is required in each house to send constitutional amendments to the states (again, a constitutional function). But these are special cases; the default was expected to be a simple majority.
Second, the Senate would operate the way the House does. The House allowed filibusters in the first decades after adoption of the Constitution, but as that body grew and its business became more complicated, the House voted strict limits on debate, which have remained in place for two centuries now. The lack of a filibuster has not made decisions of the House conspicuously less responsible than those of the Senate.
Third, the Senate would operate the way a democratically elected body is expected to. The Senate was not democratic at its birth; its members were chosen by the state legislatures. But the 1913 approval of the Seventeenth Amendment gave selection of senators to the voters of their states. The point was to dismantle the Millionaires’ Club and make the Senate more responsible to the people. One aspect of responsibility is producing legislation that reflects the way people have voted. In a democracy, this is normally by majority rule.
Fourth, eliminating the filibuster would make American national politics more honest. At present, candidates and office-holders are tempted to promise the moon, knowing they can blame the filibuster when they don’t follow through. Without the filibuster they will have to stand—or sit, rather—and deliver.
Finally, eliminating the filibuster would help restore the balance the framers intended between the legislative and executive branches. With the Senate filibuster paralyzing Congress, presidents have taken to acting by executive order on issues the Constitution assigns to the legislature. Presidents make policy on immigration; they impose tariffs and otherwise regulate trade; they interpret tax codes to suit their preferences; they bestow federal funds on the states, or withhold them; they do scores of things the framers never imagined them doing.
Defenders of the filibuster say it prevents Congress from veering wildly back and forth as the parties gain and lose control; in fact, the filibuster transfers the veering to the executive branch, thereby making it worse. Old legislation can be repealed only by new legislation, which entails hearings and votes; executive orders can be overturned by the stroke of one person’s pen.
“Its situation must always savor of weakness, sometimes border upon anarchy,” Hamilton warned about a minority-obstructed legislature. We certainly have the weakness, and if January 6 is any portent, the anarchy may be coming.