The filibuster is “the tradition of the Senate here in 232 years now. … We need to be very cautious what we do. … That’s what we’ve always had for 232 years. That’s what makes us different than any place else in the world.”
Senate Democrats are threatening to carve out an exception to the filibuster to pass voting rights legislation, but some key members of the caucus — notably Manchin — are dubious. He argued that it was a 232-year-old tradition that should not be easily discarded.
But Manchin’s history is wrong. Let’s explain, concisely.
The word “filibuster” is derived from a Dutch word for pirate. In the Senate, filibuster generally refers to extended debate that delays a vote on a pending matter.
Cloture is a device to end debate. In the current Senate, it generally requires 60 senators — a supermajority — to agree to end debate so a vote can be taken. For controversial legislation such as on guns or health care, even with bipartisan support, that can be a high hurdle to overcome.
The filibuster, contrary to Manchin’s suggestion, is not mentioned in the U.S. Constitution, which went into effect 232 years ago. (Well, actually 233 years, but Manchin, like many people at the start of a new year, apparently hasn’t internalized the switch to 2022.)
Some historians date the rise of the filibuster to actions of Aaron Burr, vice president in 1805. In his capacity as president of the Senate, he argued that the chamber’s rule book was a mess and should be cleaned up. He said the body should eliminate a rule that allowed a majority of the Senate to automatically cut off floor debate, called the “previous question” motion, because he thought it was unnecessary. The Senate took that step a year later.
But legal scholars Catherine Fisk and Erwin Chemerinsky, in a 1997 Stanford Law Review article, noted that the previous question was rarely used in the Senate before 1806. In fact, they uncovered that in 1790, senators from Virginia and South Carolina relied on extended speeches in a failed effort to block a vote to temporarily move Congress to Philadelphia.
The Senate website refers to these speeches in the first session of Congress, noting “the right of unlimited debate in the Senate, including the filibuster, has been a key component of the Senate’s unique role in the American political system.”
Still, it was decades — 1856 — before the Senate established a right of unlimited debate. Before then, there were some skirmishes on the Senate floor, such as in 1826, 1837 or 1841, that some experts trace as the beginning of the filibuster. The word “filibustering” was first used on the Senate floor to connote unlimited debate in 1853, according to Fisk and Chemerinsky. But it was not until the 1880s that filibusters were successful in derailing legislation; before then, every effort failed.
But then filibusters increasingly became successful. Senators mounting the filibuster would organize a tag team of like-minded colleagues who would speak in two-hour rotations, in effect halting all Senate business as long as the filibuster was maintained. President Woodrow Wilson, who had been a noted congressional scholar, in 1917 urged the Senate to changes the rules to allow for an end to debate. He argued that filibusters were harming national security during World War I.
In a compromise, a new rule established cloture — allowing for debate to be ended with a supermajority (two-thirds present and voting) of senators. (Many senators had preferred a simple majority vote.)
Even so, cloture was rarely invoked in the decades following its adoption. Filibusters were generally used to thwart civil right bills; the Civil Rights Act of 1964 tied up the Senate for 74 days, according to Fisk and Chemerinsky.
In 1975, when Joe Biden was in the Senate, the rules were changed again so that cloture could be invoked with the support of 60 votes instead of two-thirds of the Senate (67 votes). While that in theory lowered the threshold for ending debate, a new system for tracking legislation instituted separately under then-Majority Leader Mike Mansfield (D) actually made it easier to mount a filibuster because opponents no longer had to make sure they had enough senators available on the floor for votes.
“The effect of the tracking system is that a filibuster no longer ties up the business of the Senate,” law professor Josh Chafetz of Cornell Law School wrote in 2011. “Once a Senator announces an intention to filibuster a measure, the issue is simply kept on the back burner unless the majority can muster the sixty votes for cloture.”
Even so, that change did not immediately result in more filibusters. But over time — and both parties point fingers at each other for abusing the process — filibusters essentially became the norm, so that just about any bill requires at least 60 votes of support for passage.
The only exception was for budget bills under a process known as reconciliation. Over time, that has been stretched to include tax bills and last year the coronavirus economic relief legislation pushed by President Biden. Republicans in 2017 even tried to repeal the Affordable Care Act through reconciliation but could not get the necessary 50 votes for passage.
More recently, Democrats in 2013 eliminated the filibuster for all presidential, judicial and executive-branch nominations, except for Supreme Court appointees. Republicans had blocked votes for President Barack Obama’s nominees to the influential U.S. Court of Appeals for the District of Columbia, and his picks to lead the Defense Department, the National Labor Relations Board and the Consumer Financial Protection Bureau.
Then, when Democrats in 2017 mounted a filibuster of President Donald Trump’s first Supreme Court nominee, Neil M. Gorsuch, Republicans moved to eliminate the filibuster for Supreme Court nominations.
A Manchin spokesperson offered this statement in response to our queries: “Prior to 1917, there was no mechanism for ending debate in the Senate, effectively allowing one member to block any action on any bill. While the threshold for invoking cloture has been modified over the years, there has never been majority cloture in the Senate.”
Without saying so, the statement concedes Manchin was wrong to cite a “tradition” of 232 years.
The Pinocchio Test
Manchin’s history is incorrect.
As we have shown, early efforts at delaying bills through unlimited debate routinely failed. Between 1789 and 1806, the Senate had a rule on its books allowing for ending debate. Even after the rule was eliminated, the right of unlimited debate was not established until 1856. By 1917, a mechanism was introduced — cloture — that permitted the Senate to end debate with a supermajority vote.
Even those basic facts obscure that the filibuster has evolved in recent decades. Until the mid-1970s, senators wanting to filibuster a bill were required to organize a tag team of colleagues to hold the floor for days, in effect halting all Senate business. That built pressure and allowed for a supermajority to form in opposition. Now, the Senate business can continue even if a filibuster is threatened against a controversial bill. That’s a tradition that is not even 50 years old.
The history of unlimited debate and the filibuster is much more nuanced than Manchin claims. He earns Three Pinocchios.
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