{"id":561825,"date":"2021-06-12T10:06:44","date_gmt":"2021-06-12T14:06:44","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=561825"},"modified":"2021-06-12T10:06:47","modified_gmt":"2021-06-12T14:06:47","slug":"lets-get-our-filibuster-history-right","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/lets-get-our-filibuster-history-right\/","title":{"rendered":"Let\u2019s Get Our Filibuster History Right"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">12<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Flets-get-our-filibuster-history-right%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=561825&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2021\/06\/1C1D81DB-9386-44F9-AE1E-6D0403057655-1200x800-1.jpeg\" class=\"ff-og-image-inserted\"  style=\"display:none\"><\/div>\n<p><a href=\"https:\/\/time.com\/6071524\/kyrsten-sinema-filibuster\/\">Sen. Kyrsten Sinema<\/a> last week claimed the Senate filibuster \u201cwas created to bring together members of different parties to find compromise and coalition.\u201d<\/p>\n<p>Sinema\u2019s statement is not historically accurate.<\/p>\n<p><a href=\"https:\/\/nymag.com\/intelligencer\/article\/fake-history-senate-filibuster-sinema-founders-constitution.html?utm_campaign=nym&#038;utm_source=tw&#038;utm_medium=s1\">New York magazine\u2019s Jonathan Chait<\/a>, a filibuster critic, charged Sinema with pushing \u201ca version of this fake history\u201d as part of an \u201cextraordinarily effective propaganda campaign\u201d by filibuster proponents. He countered, \u201cThe filibuster emerged in the 19th century not by any design, but \u2026 due to an interpretation of Senate rules which held that they omitted any process for ending debate. The first filibuster did not happen until 1837, and it was the result of exploiting this confusing rules glitch.\u201d<\/p>\n<p>Chait\u2019s statement is not historically accurate.<\/p>\n<p>In his anti-filibuster book, \u201c<a href=\"https:\/\/www.amazon.com\/Kill-Switch-Crippling-American-Democracy\/dp\/1631497774?asin=1631497774&#038;revisionId=&#038;format=4&#038;depth=1\">Kill Switch<\/a>,\u201d former Senate aide Adam Jentleson declared that \u201cSouthern senators\u201d\u2014 both antebellum pro-slavery and post-Reconstruction segregationist senators \u2014 \u201cinvented the filibuster,\u201d and stated that \u201c[i]n the eighty-seven years between the end of Reconstruction and 1964, the only bills that were stopped by filibusters were civil rights bills.\u201d<\/p>\n<p>Jentleson\u2019s statement is not historically accurate either.<\/p>\n<p>Getting our filibuster story straight is difficult because the history is murky and everyone trying to tell the story has an angle. This includes me, but I shall do my best.<\/p>\n<p>Let\u2019s start at the beginning. The filibuster wasn\u2019t invented by Southern senators. It wasn\u2019t even invented in America. The credit should go to the senators of the Roman republic. Actually, one in particular.<\/p>\n<p>The Romans had all sorts of obstructionist tactics, as historian <a href=\"https:\/\/www.jstor.org\/stable\/26228627\">Adam Lebovitz<\/a> has detailed. One was obnuntiatio, breaking up a legislative session because of a bad omen, which could be done disingenuously. <a href=\"https:\/\/penelope.uchicago.edu\/Thayer\/e\/roman\/texts\/plutarch\/lives\/cato_minor*.html\">Plutarch<\/a> wrote of an episode in which \u201cPompey lyingly declared that he heard thunder, and most shamefully dissolved the assembly, since it was customary to regard such things as inauspicious, and not to ratify anything after a sign from heaven had been given.\u201d<\/p>\n<p>Another was talking until nightfall when meetings ended, which was not called \u201cfilibuster\u201d but diem consumere, to consume the day. Cato the Younger was the most famous practitioner of diem consumere. His biographers <a href=\"https:\/\/observer.com\/2016\/01\/the-forgotten-founding-father-who-explains-americas-political-dysfunction\/\">\u00a0Rob Goodman and Jimmy Soni<\/a> go as far as to state, \u201cThe history of the filibuster \u2026 essentially starts with Cato.\u201d<\/p>\n<p>Cato\u2019s <a href=\"https:\/\/www.theatlantic.com\/politics\/archive\/2011\/03\/how-the-filibuster-wrecked-the-roman-senate-and-could-wreck-ours\/72776\/\">stemwinders<\/a> \u2014 he could \u201cspeak at the top of his lungs for hours\u201d \u2014 were wielded for populist ends. He waged a successful six-month campaign to prevent Rome\u2019s private tax collectors from jacking up their rates. He prevented Pompey, a general, from steering precious land to his troops. And spotting a threat to the Republic itself, with just a one-day talkathon, Cato denied Julius Caesar the ability to have a military parade in his honor while also running for political office.<\/p>\n<p>Caesar would soon seize autocratic power, and Cato would commit suicide rather than live under Caesar\u2019s rule. <a href=\"https:\/\/www.politico.com\/magazine\/story\/2014\/01\/rome-washington-politics-101723\/\">Goodman<\/a> and <a href=\"https:\/\/www.theatlantic.com\/politics\/archive\/2011\/03\/how-the-filibuster-wrecked-the-roman-senate-and-could-wreck-ours\/72776\/\">Soni<\/a> argue Cato\u2019s obstructionism \u2014 however high-minded \u2014 was a contributing factor to the Roman Republic\u2019s collapse. America\u2019s Founding Fathers, however, idolized Cato. George Washington\u2019s soldiers staged a play about Cato at Valley Forge. Patrick Henry\u2019s famous quote, \u201cGive me liberty or give me death,\u201d is <a href=\"https:\/\/medium.com\/s\/story\/romes-heroes-and-america-s-founding-fathers-6dada32a8885\">derived<\/a> from a line in that play.<\/p>\n<p>Filibuster critics correctly note that the tactic was not established in the Constitution nor was it codified in the initial congressional rules. But if the Founders feared the emergence of a Cato in their republican experiment, they could have explicitly banned diem consumere. They didn\u2019t.<\/p>\n<p>Granted, Thomas Jefferson wrote a rules manual that informally guided the early Senate, and he instructed, \u201cNo one is to speak impertinently or beside the question, superfluously or tediously.\u201d However, legal scholars <a href=\"https:\/\/www.jstor.org\/stable\/1229297\">Catherine Fisk and Erwin Chemerinsky<\/a> inform us that \u201csuch debate occurred\u201d anyway. They also note, \u201cIt is not clear \u2026 whether extended debate with dilatory intent was considered an established practice at this point, or \u2026 the bad habit of a few persons.\u201d Still, if the first congressional majorities believed that dilatory tactics were meant to be banned, they would have tightened up the rules at the first sign of violation.<\/p>\n<p>Chait, citing work by filibuster historian <a href=\"https:\/\/www.brookings.edu\/testimonies\/the-history-of-the-filibuster\/\">Sarah Binder<\/a>, placed the first American filibuster in 1837 \u2014 when the Whigs tried to stop the expunging of Andrew Jackson\u2019s censure from the congressional record. But Fisk and Chemerinsky determined that \u201cthe strategic use of delay in debate is as old as the Senate itself,\u201d and they found the \u201cfirst recorded episode of dilatory debate\u201d occurred in 1790 \u201cwhen senators from Virginia and South Carolina filibustered to prevent the location of the first Congress in Philadelphia.\u201d One senator who favored the Philadelphia bill recounted, \u201cThe design of the Virginians and the Carolina gentleman was to talk away the time, so that we could not get the bill passed.\u201d<\/p>\n<p>Chait\u2019s mention of filibusterers \u201cexploiting this confusing rules glitch\u201d is a reference to Binder\u2019s argument that, in 1805, Vice President Aaron Burr inadvertently opened the door to filibustering when he recommended cleaning up the Senate rulebook and removing unnecessary provisions including the \u201cprevious question motion.\u201d In Binder\u2019s telling, \u201ctoday, we know that a simple majority in the House can use the [previous question] rule to cut off debate. But in 1805, neither chamber used the rule that way.\u201d So the Senate got rid of it, not realizing its absence would allow senators to filibuster in the future.<\/p>\n<p>But another filibuster historian, <a href=\"https:\/\/www.mischiefsoffaction.com\/post\/aaron-burr-is-not-to-blame-for-the-senate-filibuster\">Gregory Koger<\/a>, recently debunked the Burr origin story. He noted that in much of the 19th century the House had filibusters \u2014 more than the Senate in fact \u2014 even though it kept the \u201cprevious question motion\u201d on the books.<\/p>\n<p>What\u2019s confusing is that the \u201cprevious question motion\u201d was interpreted differently by the House at different times. It wasn\u2019t initially used to cut off debate. Then in 1811 it was, but in subsequent years it wasn\u2019t routinely used in that fashion. Not until the late 19th century were House procedures broadly and comprehensively reformed to greatly empower the majority and quash dilatory tactics.<\/p>\n<p>The House history of the \u201cprevious question motion\u201d speaks to Koger\u2019s main point: \u201cthe meaning of rules is determined by legislative majorities, even if this means completely reversing the traditional interpretation of a term.\u201d In other words, any majority can interpret the rules however they want, whenever they want.<\/p>\n<p>Chait looks to the Burr story to argue the filibuster \u201cemerged accidentally\u201d because \u201cnobody ever would create a system like this on purpose.\u201d But Koger counters that \u201cSenators have always had the power to determine what their rules mean, so they have always been able to limit or eliminate filibustering if a majority of the Senate is ready to vote for reform.\u201d<\/p>\n<p>Remember, in the past decade, narrow Senate majorities have limited the filibuster, deploying the so-called \u201cnuclear option\u201d to eliminate the filibuster for judicial and executive branch appointments. Koger concludes, \u201c[I]f a bare majority can end the filibuster now, then this has always been true, and there is no proof that their path to success would be easier if they had a [previous question] motion. For advocates of Senate reform, this poses an awkward truth: the Senate filibuster has persisted to this point because lots of senators have supported it.\u201d<\/p>\n<p>Case in point: When senators grew tired of the 20th century talking filibusters, they didn\u2019t abandon the parliamentary tool, they reformed it.<\/p>\n<p>Filibusters gummed up the floor, preventing any other work from getting done. So, as Binder explained this year in <a href=\"https:\/\/www.washingtonpost.com\/politics\/2021\/03\/17\/biden-says-bring-back-talking-filibuster-would-that-really-let-senate-democrats-pass-bills\/\">The Washington Post<\/a>, \u201cMajority leader Mike Mansfield (D-Mont.) in 1970 suggested that the Senate invent a second \u2018shift\u2019 or \u2018track\u2019 of legislation. When a filibuster blocked the first track, Mansfield simply asked unanimous consent of all 100 senators to set aside the filibustered measure and move onto a new bill on a different \u2018track.\u2019 Mansfield\u2019s change did not require the Senate to make a formal change in its rules. All he really did was ask for consent to start tracking. Party leaders on both sides of the aisle thought tracking would help them make the floor schedule more predictable.\u201d<\/p>\n<p>The two-track system is the current system. It is a system that allows for easily executed \u201csilent\u201d filibusters. It is a system created on purpose.<\/p>\n<p>In Jentleson\u2019s story, the senators who supported the filibuster were racists. Of course, there\u2019s no disputing that for decades Southern segregationists weaponized the filibuster to protect racist Jim Crow laws. But Jentleson overstates the case when he claims that \u201cbetween the end of Reconstruction and 1964, the only bills that were stopped by filibusters were civil rights bills.\u201d Binder and Steven Smith, in their 1996 book \u201cPolitics or Principle? Filibustering in the United States Senate,\u201d identified \u201ctwenty-six measures\u201d proposed between Reconstruction and 1994 \u201cthat would directly change public law\u201d that were \u201cclearly killed because of the ability of a minority of senators to prevent action.\u201d Only nine of those 26 were related to civil rights. And before 1949, \u201cthe number of non-civil rights measures blocked by filibuster [was] about as large as the number of civil rights measures killed by filibuster.\u201d<\/p>\n<p>Jentleson and others (including <a href=\"https:\/\/www.realclearpolitics.com\/articles\/2020\/08\/10\/obama_is_wrong_about_the_filibuster_143917.html\">Barack Obama<\/a>) want to claim that the filibuster is defined by Jim Crow to argue that it has \u201cmainly served to empower a minority of predominantly white conservatives.\u201d But the filibuster is a tactic with no inherent ideological disposition. Cato used it against the authoritarians and plutocrats of his time. As the Civil War neared its close, the Radical Republicans (aided by Democrats) launched a successful filibuster thwarting President Lincoln\u2019s plan to admit the government of <a href=\"https:\/\/www.knox.edu\/documents\/LincolnStudies\/BurlingameVol2Chap35.pdf\">Louisiana<\/a> back in the Union, because Louisiana had not yet given Blacks the vote. In this century, President George W. Bush began his second term with a major push to partially privatize Social Security, but when the <a href=\"https:\/\/www.nbcnews.com\/id\/wbna7152885\">Senate Democratic minority<\/a> made clear it had the votes for a filibuster, Bush had no choice but to <a href=\"https:\/\/www.google.com\/books\/edition\/Bush_on_the_Home_Front\/KIxicDnuMzoC?hl=en&#038;gbpv=1&#038;bsq=died\">stand down<\/a>.<\/p>\n<p>Just as supporters should not pretend that the filibuster was created to produce bipartisan harmony, critics should not pretend that the filibuster is both a historical accident and a linchpin of systemic racism. Let\u2019s tell the true story of the filibuster, not a pat story that serves the ideological purpose of one side of the debate, but the messy convoluted story that reminds us democracy has always been difficult to maintain.<\/p>\n<p><i>The views expressed in this opinion piece are the author\u2019s own and do not necessarily represent those of The Daily Wire.<\/i><\/p>\n<p><i>Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show \u201cThe DMZ,\u201d and host of the podcast \u201cNew Books in Politics.\u201d\u00a0He can be reached at contact@liberaloasis.com or follow him on Twitter @BillScher.<\/i><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Sen. Kyrsten Sinema last week claimed the Senate filibuster \u201cwas created to bring together members of different parties to find compromise and coalition.\u201dSinema\u2019s statement is not historically accurate.New York magazine\u2019s &#8230;<\/p>\n","protected":false},"author":1,"featured_media":2280099,"comment_status":"close","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2021\/06\/1C1D81DB-9386-44F9-AE1E-6D0403057655-1200x800-1.jpeg","fifu_image_alt":"Let\u2019s Get Our Filibuster History Right","footnotes":""},"categories":[],"tags":[],"class_list":["post-561825","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"fifu_image_url":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2021\/06\/1C1D81DB-9386-44F9-AE1E-6D0403057655-1200x800-1.jpeg","fifu_image_alt":"Let\u2019s Get Our Filibuster History Right","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/561825","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=561825"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/561825\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2280099"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=561825"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=561825"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=561825"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}