Who Was the Father of the Filibuster?

With the U.S. Senate’s filibuster in the news, this Washington Post article by Ezra Klein from 2010 caught my eye. Senate traditionalists often invoke the name of Thomas Jefferson when they praise their unusual rules; he wrote up an early version of those rules. But the rules allowing some sort of minority to block passage of a bill go back to another Founder: Aaron Burr.

Klein quotes at length from political scientist Sarah Binder, author of Politics or Principle: Filibustering in the United States Senate. Using the historical present tense, Binder starts with the established rule of the “previous question motion.” That was the mechanism in Jefferson’s original rules, based on precedents from Britain’s Parliament and common sense, for ending debate and moving to an actual vote:

In 1805, Aaron Burr has just killed Alexander Hamilton. He comes back to the Senate and gives his farewell address. Burr basically says that you are a great body. You are conscientious and wise, you do not give in to the whims of passion. But your rules are a mess. And he goes through the rulebook pointing out duplicates and things that are unclear.

Among his suggestions was to drop the previous question motion. And they pretty much just take Burr’s advice. And once it’s gone, it takes some time for leaders to realize that they can’t cut off debate anymore. But the striking part to me was that we say the Senate developed the filibuster to protect minorities and the right to debate. That’s hogwash! It’s a mistake. Believe me, I would’ve loved to find the smoking gun where the Senate decides to create a deliberative body. But it takes years before anyone figures out that the filibuster has just been created.

Of course, that wasn’t the only time Aaron Burr fathered something without realizing it.

Binder’s analysis rings true to me. It matches what I’ve noticed about other rules and procedures from the early decades of the republic, such as the Electoral College and recess appointments, that are hard to justify on a democratic basis. Almost always it’s impossible to find a record of the Founders discussing those arrangements in advance. There’s no indication that they considered the possible drawbacks to those decisions, the way people could take advantage of them or they could lead to controversy.

Once some part of the political world has benefited from one of those procedures, however, it becomes hard to remove. And after officials from both parties have used the procedure, change is almost impossible. Because by then it’s acquired the force of precedent and “tradition,” not to mention powerful advocates with an interest in maintaining legitimacy.

Sometimes lawyers and politicians invent arguments to justify a tradition they’ve benefited from. Thus we have the irony of the mid-20th-century Senate filibuster rule, used most famously by Sen. Strom Thurmond to stall a mild civil-rights bill in 1957, held up as a protection for “minority rights.” But such noble ideals don’t seem to have been on the minds of the men who instituted such rules.