It’s 1804. Aaron Burr kills Alexander Hamilton but he’s still the vice president, runs out of town. Back, 1805, he’s in the chamber. He’s still dispensing advice in the Senate. And Burr says, you’re a great deliberative body but a really great chamber has a very clean rulebook and yours is a mess. And he singles out that previous question motion. They get rid of it in 1806, not because they wanted to create filibusters, right, not because they saw the great deliberative body of the Senate and they needed a right way to protect the rights of minorities. That rule was gone because Aaron Burr told them to get rid of it and it hadn’t been used yet.Sarah Binder
This was originally published as a quote from this episode of On the Media, near the date when the episode released. Since this is a problem that we are still talking about four years later, I have moved it forward to today and added more of my thoughts on the subject, like I had originally intended to do when I set the quote aside to be published later, and then published even later after my thoughts evaporated.
This is the thing that started the thoughts back up again:
The filibuster is a Senate rule requiring a 60 vote supermajority to pass legislation, which means a minority of Senators can often block legislation that the vast majority of Americans want and need.
It’s not in the Constitution. In fact, it is arguably unconstitutional. Alexander Hamilton considered a supermajority rule as “A Poison” that would lead to “Contemptible Compromises of the public good.”
Even without the filibuster Senate Republicans already have an outsized influence. The 50 of them represent 41.5 million fewer Americans than the 50 Senate Democrats.
The Senate isn’t a democratic body. It is a body created to ensure that states had a voice in the federal government. That is its reason for existing and that is why it is made up the way that it is. But that doesn’t mean that the rules that govern the Senate should be broken in such a way that it can’t get business done because the minority wants to roll around on the floor like a temperamental child that doesn’t get what it wants (Yes, Ted Cruz. I’m imagining you with chocolate smeared on your face and wearing an OshKosh jumper rolling on the Senate floor right now, destroying my fond memories of Green Eggs and Ham. Petulant. Small. Child. Ted Cruz) The Senate simply needs to restore the motion to call the previous question that still exists in the House rules and in the basic parliamentary rules that govern most legislative bodies (Robert’s Rules of Order) Striking that rule in the Senate is what has lead to the impasse of the filibuster.
It is amusing to me that the rule was originally struck because it was thought that Senators were too civilized to need to end debate with a vote since no Senator had ever refused to stop talking when it was clear that he was not convincing anyone. Had the original Senators known the future, known that John C. Calhoun would use the filibuster in defense of slavery to bring the United States to the brink of Civil War, that Mitch McConnell and his Republicans would use it to stop the Senate from being able to get anything done, they would have left the ability to call the previous question in place. If we could talk to them today they would probably marvel at our inability to simply set the filibuster aside as a bad idea that has long outlived its usefulness. They had just voted themselves as no longer subject to the King of England a few decades earlier. Don’t like the rules? Change the rules.
I know, I know. I seem to contradict myself on the subject of the filibuster when it comes to Wendy Davis and her filibuster in the Texas Senate. Not really. I’m all for using the rules to get your way. I have done this myself at Libertarian Party meetings. I would do it again if I had to. This is the point in having rules in the first place and learning the rules as part of the process. How to use the rules to your advantage is what Mitch McConnell was always good at. It got him a six seat majority on the SCOTUS. Congratulations Mitch you bastard.
The filibuster can be used for both good and bad reasons. I happen to think that Wendy Davis was making the good fight back in 2013. I also happen to think that Ted Cruz is a moron for reading Green Eggs and Ham on the U.S. Senate floor protesting against the Affordable Care Act. Wendy Davis had to stand up for less than a day and defend her filibuster, which resulted in the legislation she opposed being left unpassed and required the Governor to call a special session in order to pass later. Legislation that was later gutted by the courts. Ted Cruz rolled around like a spoiled child knowing that he would never succeed at what he wanted to do because he’d have to stop sometime, and the Senate would simply gavel through the measure anyway. Which they promptly did as soon as he wiped the snot off his face and left the Senate floor.
The broken U.S. Senate rules could be fixed at any time and should probably have been fixed decades ago. The same goes for the Texas Senate, another legislative body that borrowed the rules it utilizes from the broken U.S. Senate. If they leave those loopholes in the rules they will be used, and they will be used by minorities to impede the will of the majority. The majority in Texas is simply wrong on the subject of women’s health. A whole state full of misogynists, but that is a story for another article.
Texas still requires the talking filibuster, unlike the U.S Senate. That is the difference between Wendy Davis’ principled stand and Ted Cruz’s phlegm-flaked tantrum.
Another consequential change in the mid-1970s was adoption of the “two-track” policy, which functionally eliminated the “talking filibuster.” Before this rule change, senators were required to hold the floor to execute a filibuster, blocking all Senate business until a cloture vote could be held. To better utilize time, the new rule established the dual-tracking system, allowing the Senate to work on multiple bills at once. Any bill being filibustered would move to a “back burner” until a cloture vote could be held, while the Senate focused on other bills instead. This change made it easier for a minority to kill a bill by simply indicating a desire to filibuster, thus blocking it before it ever can reach the Senate floor.brennancenter.org
The only thing Ted Cruz proved was that removing the two-track system is probably not going to be enough to fix the problem, it’s going to be necessary to replace the previous question motion and make the Senate more of the democratic body that Aaron Burr and his peers merely pretended that it was.
For every Senate race in
2022 2024, the Democratic candidate should be running on ending the filibuster. “If you vote for me I will vote with the Democratic caucus to put an end to the filibuster.” It seems crazy that we would have to vote on ending this BS that Aaron Burr started, but that is life in the modern United States.
This article will be updated and moved forward when the news puts it back on the front page.