History and the Filibuster

The real history of the filibuster is a complicated and interesting one. Gold and Gupta provide a comprehensive review in a scholarly article in the Harvard Journal of Law and Public Policy [1]. In identical wording, the Constitution provides that both the Senate and the House can make their own rules. In the very first Senate, there were no filibuster provisions. Following the common practice of the time, including the Continental Congress and the British House of Commons, and the present rules of House of Representatives, a simple majority can end debate and bring anything to the floor for a vote.

In the 1806 codification of the Senate rules by then Vice-President Aaron Burr, there was acknowledged oversight which allowed for unlimited debate. Rather than filibusters in the Senate being a Constitutional provision, filibusters were introduced by accident. The use of unlimited debate to prevent bringing a bill to the floor was first employed in disputes over the Bank of the United States in the 1830s. Though the filibuster was infrequently used, for 111 years (1806 to 1917), a single Senator could prevent a vote on a bill by simply continuing talk. This is the ultimate in minority rights. A single Senator could stop the Senate from action.

In 1917, isolationist Republicans used the filibuster to make it more difficult to President Woodrow Wilson to prepare for war. Using the threat of eliminating the filibuster rules altogether, a compromise change in rules was agreed to. Two-thirds of the members of the Senate could vote "cloture" to end the filibuster.

During the rest of the 20th century, the filibuster was used most effectively by Southern Democrats to bottle up civil rights legislation. Again in response to the threat of a drastic limitation of the filibuster, rules were slightly modified in 1959 to allow for cloture with 2/3 present as opposed to 2/3 of the entire Senate. Further limits were agreed to in 1975 when cloture could be evoked by 3/5 of the Senate (60 senators). Further reforms were pushed through by Senator Robert Byrd (who now worships the filibuster as a member of the minority) to provide alternative means to limit debate.

In short, the Senate rules about filibuster, instituted by accident, are just rules than can and have changed from time to time. The filibuster is not unconstitutional nor is it any way required by the Constitution. It is not a gift

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