Analysis: Filibuster Did Not Come From Founders

When Senate Majority Leader Harry Reid led a change to the rules of the Senate filibuster this week, some opponents of the change invoked the Founders in their defense of the status quo. The filibuster, though, did not come from the Founders. Rather, it came about by accident and would have been abhorred by the Founders.

The argument usually goes something like this: the Founders wanted to protect minorities, ergo, they wanted the Senate to be a supermajority institution.

This facile argument ignores one important fact: the Founders designed the Senate to be majoritarian, not super-majoritarian. The Founders were concerned about minority rights. But, these concerns were dealt with via bicameralism, separation of powers and the Bill of Rights.

If the Founders wanted decisions to be made by supermajorities (more than 50 percent plus one for passage), they would have specified that in the Constitution. Rather, the designers of the Senate specified only a few circumstances in which decisions had to be made by a supermajority – such as, treaties, proposing amendments, expelling members, overriding vetos and impeachment convictions – by implication, the rest of the decisions are to be made by majority rule.

Indeed, the reason Reid was able to change the filibuster rules with only a majority rule is that under the Constitution, majorities rule.

The filibuster came about by accident, not design. The first filibuster did not occur until the generation after the Founding generation. Its origins, though, come from Vice President Aaron Burr.

In 1806, Burr was presiding over the Senate and decided to do away with the "motion on the previous question." Under normal parliamentary procedure, there are two votes to pass a bill. First there is the vote to end debate on the bill (the motion on the previous question), then there is the vote on passage of the bill. The Senate was such a small body, Burr must have thought at the time, why are two votes necessary?

Burr never intended, though, that the privilege of unlimited debate would be used to stop a vote on legislation. None of the senators at the time, apparently, believed that either. It would be 35 years, 1841, before a senator decided to use the privilege of being able to hold the floor as long as he wanted to kill a bill.

Not only do some filibuster supporters claim that the idea came from Founders, some also claim that the filibuster rules have never been changed since the Founding. This is also not true. Filibuster rules have been changed many times since the first filibuster.

The most recent significant change, before this week, was 1975 when Senate Rule 22, the rule to end a filibuster (first added in 1917), was changed from two-thirds of senators present to three-fifths of the entire body. This change effectively ended the practice of what most people think of when they hear the word "filibuster" – speaking for long hours on the floor of the Senate. (The recent "filibusters" by Sens. Rand Paul and Ted Cruz were really more of a show for the C-Span audience than an actual filibuster.) The 1975 change meant that only one senator could object to, or place a "hold," on a bill and then, effectively, 60 votes would be required for passage – thus making the Senate a super-majority institution.

Nowhere in the Constitution, the Federalist Papers, or James Madison's notes from the Constitutional Convention can one find a Founding Father arguing in favor of super majority rule for the Senate (except for the few exceptions mentioned above). Indeed, one of the things the Founders sought to correct about the Articles of Confederation was the overuse of supermajorities.

On paper, Reid's change is a small one. It only ends the filibuster for certain judicial nominees. Future Senates, though, will get rid of the filibuster for other votes. This means the filibuster is effectively dead. The Founders would say, "good riddance."