On July 11, 1804, Vice President Aaron Burr and Secretary of the Treasury Alexander Hamilton rowed boats across the Hudson River from New York City to Weehauken, New Jersey. Their infamous duel would leave Hamilton dead and Burr in political exile. But not until he had, perhaps unintentionally, created the Senate filibuster. (More)

The Filibuster, Part I – Echoes of a Duel

This week Morning Feature considers proposals to reform the Senate filibuster rule, which all 53 returning Senate Democrats pledged to attempt next week when the 112th Congress opens. Today we look at the source of and previous changes to the filibuster. Tomorrow we’ll examine the reform proposals that have been offered recently. Friday we’ll conclude with the procedural hurdles, and why even 53 votes does not guarantee success.

The filibuster is not constitutional … or unconstitutional.

Contrary to arguments by Sen. Judd Gregg (R-NH) and Chris Dodd (D-CT), there is no evidence that the Framers intended the Senate to have a filibuster rule. Article I of the Constitution specifies instances that require a supermajority: two-thirds votes needed in the Senate to ratify a treaty or convict on impeachment, and two-thirds needed in either house to expel a member, override a presidential veto, or pass a constitutional Amendment. Article I also specifies one instance that empowers a minority: one-fifth of Senators can demand that individual members’ votes be recorded.

While some argue that these examples prove the Framers intended the Senate to require a supermajority, in fact they suggest exactly the opposite. There is a common legal principle of expressio unius est exclusio alterius – “to express one is to exclude all others” – which says that if a law or contract provides a list of specific cases where a rule applies, the rule does not apply except in those specific cases. When lawmakers don’t want expressio unius to be applied, they use phrases like “including but not limited to.” Article I does not have such a phrase in its list of cases where a supermajority vote is needed, so expressio unius would apply.

And as University of Texas professor William Blake wrote in Parliamentary Review, the Constitution was written to supersede the Articles of Confederation. The Articles of Confederation did require two-thirds supermajorities for major legislation such as declaring war, entering treaties, coining money, or spending or borrowing funds, one of many reasons the Articles were too unwieldy and ineffective to continue. So had the Framers wanted to continue the two-thirds supermajority for legislation, they had a model to follow … and they chose not to follow it. The filibuster is not a constitutional mandate.

But Article I, Section 5, Clause 2 of the Constitution provides that “Each House may determine the rules of its proceedings[.]” That sentence permits the filibuster, including the three-fifths requirement for cloture that currently exists in Senate Rule XXII. The key: the filibuster is a Senate rule that the Senate can change, not a constitutional mandate requiring a formal amendment. So how did it start?

“A still more despicable opinion….”

Alexander Hamilton and Aaron Burr were long-time political rivals who had squabbled for years over a range of issues. Secretary Hamilton was the leader of the Federalist Party, which he had formed to support then-President George Washington. Burr was a leader in the Democratic-Republican party, founded by President Thomas Jefferson and his ally, James Madison. Burr took the office of Vice President via the bungled election of 1800, which exposed a flaw in the original Constitution and led to passage of the Twelfth Amendment. In short, our baby government was having teething pains.

Having challenged President Jefferson during the 1800 recount, it was obvious that Vice President Burr would not be on the ticket in 1804. Instead, Burr ran for Governor of New York. Hamilton opposed Burr in that election, backing independent candidate Morgan Lewis. In the early 19th century version of a election season media feeding frenzy, a letter from Charles Cooper to Philip Shuyler made its way to the Albany Register. The letter claimed to describe “a still more despicable opinion” – never completely specified – which Hamilton held regarding Burr. Cooper was Hamilton’s father-in-law, and Burr took the letter as an offense to his honor.

Hamilton denied responsibility for his father-in-law’s words, but Burr would not be assuaged. The two men agreed to their now infamous duel. While Burr may have intended to “throw his shot” – to miss on purpose, with the duel itself having preserved his honor – he shot and killed Hamilton. Aaron Burr lost the 1804 gubernatorial race, and would largely disappear into political exile after his term as Vice President ended.

The birth of the filibuster.

But before he left, Burr gave his farewell address to the U.S. Senate. He praised them for their conscientious work. He also criticized their arcane rules. Among the rules Burr singled out was the “Previous Question” rule, which also existed in the House. Under that rule, any member could make a motion for the body to end debate and vote on the “previous question,” the bill under discussion. If the motion was seconded and backed by a simple majority, debate ended and the vote was held.

The same rule exists in Robert’s Rules of Order, where it is commonly known as “calling the question.” Robert’s Rules are widely used by committees ranging from local parties to church groups. I’ve served on such committees, and I’ve seen the rule abused. It’s frustrating if you’re waiting to voice an objection, only to hear “Call the question!” “Second!” “All in favor?” “AYE!” “Passed. Let’s vote!” yelled in rapid fire succession. So I understand why Vice President Burr challenged the rule.

Enough senators agreed that they removed the “Previous Question” rule. But that gave the Senate no way to end debate on a bill, and the filibuster was born. (The House kept the “Previous Question” rule, but with a provision suspending that rule when leaders agreed on a specified period of debate.)

The filibuster was not a measure carefully crafted by the Framers’ to protect the minority from a narrow majority. It is not mandated by the Constitution. It was a rule-making accident, the echo of a duel. The rule has been changed before, most notably in 1917 when a two-thirds supermajority was required for cloture, and again in 1975 when the cloture threshold was lowered to three-fifths. It can be changed again.

And it should be. Because the Framers did not intend rule by minority obstruction.

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Happy Wednesday!