By Ezra Klein
If Democrats really do try to reform the filibuster Jan. 5, we’re likely to hear a lot about how the Founding Fathers designed the Senate with the filibuster in mind, or how the filibuster is written into the Constitution. Sen. Judd Gregg gave a pretty comprehensive version of this argument last March. Sen. Chris Dodd gave another version of it in November.
But whatever you think of the filibuster, this argument isn’t true. The delaying tactic — which has morphed into a supermajority requirement that underpins the everyday workings of the modern Senate — is not in the Constitution. It wasn’t envisioned by the Founding Fathers. Quite the opposite, actually.
As William Blake shows, the Founders would have been horrified by the filibuster. The Constitution was, in part, a reaction to the paralysis of supermajority requirements. Its predecessor, the Articles of Confederation, required two-thirds of the states to agree before the government could declare war, coin money, enter treaties, or spend or borrow funds. That rendered the government barely able to function. James Madison, in ‘Federalist 58,’ went at the supermajority directly:
It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.
The Constitution itself was very specific on the moments when the Senate should require more than a simple majority: impeachment of a president, expulsion of a member or overriding a veto. If the Framers had wanted a constant supermajority requirement, they would have mentioned it.
As for the old story where George Washington pedantically explains to Thomas Jefferson that the Senate is meant to do for legislation what the saucer does for coffee (“cool it”), the Senate was designed with important differences than the House: The Senate is smaller than the House, it represents states rather than people, and only a third of the body is up for reelection at any given time. Elections come every six years, and the Constitution originally charged state legislatures, rather than voters, with voting senators in and out of office. Senators themselves have to be older than members of the House, and have to have been citizens for longer. Again, the Framers were pretty specific on the differences between the House and the Senate, and the filibuster didn’t make their list. In fact, it was the House where a filibuster-like practice originally reigned before the body changed its rules.
This leads to an obvious question: If it’s not in the Constitution, and it wasn’t built into the Senate from the start, where does the filibuster come from? Well, it was an accident.
All that said, I want to be clear: If, while filming National Treasure 3, Nicholas Cage unexpectedly discovers that the Liberty Bell is encircled by a secret message in which every man, woman and child who was alive to see the Constitution ratified registered their implacable and eternal opposition to the filibuster, that’s not a good argument against the filibuster. The Framers did a remarkable job in 1788, but they were men (and only men, and only white men, and only rich white men, and so on), not gods, and they did not have the information or experience that we have today. We were right to amend the Constitution to allow the direct election of senators, and perhaps the 60-vote requirement is a positive addition to the Senate, if an accidental and recent one.
But insofar as these appeals to revolutionary authority are an important part of contemporary political discourse and routinely get misused when it comes to the rules of the Senate, it’s worth setting the record straight. The Constitution didn’t create the filibuster. The Framers didn’t intend it. The modern filibuster was created in the 1970s, when cloture was moved from two-thirds of the Senate to three-fifths and dual-tracking was implemented, and it only became ubiquitous in the last 20 years, as you can see from the graph atop this post. We may think the filibuster is good or we may think it’s bad, but either way, it’s ours.