As @flurb mentions in their post, the rule change was actually in 1806 with the removal of the “previous question” (i.e. close debate by a majority vote) rule, this rule was inherited from Parliamentary procedure going back a couple hundred years. The filibuster was thus theoretically possible from that point onward, it just didn’t occur for the first time until the 1830s.
Something else worth considering–the “first filibuster” in the U.S. Senate has frequently been cited as the 1837 filibuster by Whig Senators (attempt) to block allies of Andrew Jackson from rescinding a previously passed congressional censure of the President. This is specifically the “talk endlessly so the Senate’s business cannot be conducted, utilizing the privilege of Senators to speak on a matter indefinitely”, aka the “talking filibuster.”
But there’s actually people who prefer the broader definition of the term (and in some sense I think they’re right, although in my mind the talking filibuster is so synonymous with the concept it’s hard to shake)–rather that filibustering is any procedural tactic used to block a vote that would be expected to pass on straight majority lines. By that definition filibustering has essentially occurred since the beginning of the United States Congress, and almost certainly has precedent in other older legislatures as well. One thing this argument has in its favor is it is relatively consistent. While the “talking filibuster” reached mass cultural awareness during the Civil Rights era, and was used sparingly but “dramatically” in the hundred years prior to it, the reality is there are in fact many other “procedural filibusters” that have existed and do exist to gum up the works, that don’t involve “talking.” And of course the current filibuster which “evolved” from the “talking filibuster” is of course, not actually that much like the old talking filibuster but is quite like all the other procedural machinations that have existed to gum up the operation of the chamber.
One thing all forms of filibustering have in common, is that both houses of congress have always had the power to simply proceed to a vote with a simple majority agreement. That is even true now. It is purely “convention” that has stopped it. In the earliest days of the U.S. House there were procedural tricks frequently used to delay votes (this actually still occurs today, but less frequently of course), but ultimately the convention in the House basically came down to the Speaker was going to be really powerful and would have broad discretion to move the chamber’s business along over the objections of a minority. The Senate could easily adopt such a measure as well, all rules of both houses are governed by procedural rules that are passed by a simple majority vote. This view of it suggests the filibuster should not be blamed on specific rules quirks 235 years ago, but more blamed on the people who deserve the blame–the present tense (whenever the present tense is) Senators who simply refuse to end the convention by majority vote, a power they have had since the first Senate was sworn in, and that they have had every session since.
That ship has already sailed. Changing Senate rules isn’t up for debate until the next session of Congress (January 3, 2023), because under current rules Republicans can filibuster any proposed change.
~Max
It has really only become an issue since the late 90s-early 2000s. Previously there was a tacit agreement only to filibuster legislation that a minority of senators felt an intense disagreement with. Note that the Dems did not filibuster Clarence Thomas’ nomination or Reagan’s tax cuts. The GOP did not filibuster Clinton’s tax increases, or his crime bill, or the Brady Bill. These are just examples. Legislation passed based on majority rule throughout the 20th Century despite the potential for a filibuster–the Civil Rights Act of 1964 being one of the exceptions.
Now, this tacit agreement has disappeared. It is assumed that if a senator simply disagrees with a bill, it will be filibustered, thus requiring 60 votes to pass anything. That certainly wasn’t the intent of the framers. I think much of this can be explained by the ideological purity of each party. The liberal Dems don’t have to worry about southern conservative Dems anymore (Manchin and Synema the sole exceptions). Conservative Republicans don’t have to contend with northeastern liberal “Rockefeller” Republicans in their party. (Collins and Murkowski the exceptions).
The principle is that the Senate is a highly deliberative and genteel body, and it should not be necessary to impose time restraints on the speech of an honorable Senator.
Not all that glitters is gold.
~Max
A majority of Senators could change the rules at anytime because it only takes a majority to overrule the parliamentarian. Fundamentally, the Constitution gives the Senate sole power to set and enforce its rules–even its own rules can’t prevent the Senate from changing them.
Specifically, the maneuver depends on Senate Standing Rule XX which requires that a point of order be decided by the chair without debate, subject to appeal by a majority vote of the body. (The Chair may rule in line with the Parliamentarian’s advice, but is not required to.)
So in the previous examples of the filibuster being “nuked” for non-Supreme Court nominations (in 2013) and later for Supreme Court nominations (in 2017) the Majority Leader raised a point of order that cloture only requires a majority vote on those respective categories of nominees. The point was not sustained by the chair, the Majority Leader appealed the ruling which was overturned by a majority vote, and a new precedent was established.
One implication of this is that you don’t have to eliminate the filibuster all at one go. For instance, Schumer could raise a point of order that a certain class of bills (e.g. voting rights legislation) only require a majority vote to invoke cloture.
Changes to the standing rules of the Senate can be considered at any time, and can be filibustered at any time. The threshold to end debate on a rules change is 2/3 unlike the 3/5 requirement for simple legislation.
What makes you think a Senator, who refuses to end the filibuster, will agree to interpreting the rules so as to deny the minority’s right to filibuster rule changes? Mind you that Senator Manchin in particular is the last remaining member of Congress to have voted against the nuclear option under both Reid and McConnell.
~Max
The operative word is “could” not “would”.
Senators could also only use the filibuster in good faith.
~Max
So does a presidential veto, and the structure of the Senate itself (based on states, not population), mind you.
~Max
Yes, but I am of the opinion that Senate Rule V (2) as applied to Rule XXII is an unconstitutional violation of the Rules and Proceedings Clause.
~Max
You think that the rules the Senate has adopted . . . violate the Constitutional provision . . . that the Senate may determine its own rules.
Hmm.
The worst thing about his position is that needing 50 votes in the senate is already minority rule. The dem senators represent like 41M more people than the GOP senators.
I’d be interested in your explanation of this.
And flurb thank you for correcting me. I remembered that the Senate considered the Previous Question and through misunderstanding its purpose dispensed of it, but I thought it was before the original rules were adopted.
Yes.
~Max
I think the provision allowing each house to determine the rules of its proceedings precludes any rule which prevents either house from doing so, with a majority, at least once during its sessions. For example I could invent an egregiously hypothetical rule stating, “the Senate shall not consider legislation concerning X, nor shall it ever amend this rule without unanimous consent.” That would be fine, so long as each session consents to the rule - if there was an additional rule that reads “the aforementioned rule shall be binding upon future sessions of Congress”, I think the combination is unconstitutional.
~Max
U.S. Const. art. I, § 5, cl. 2
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Senate Rule V (2) (Click to expand/hide)
The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.
Senate Rule XXII (2) (Click to expand/hide)
Notwithstanding the provisions of rule II or rule IV or any
other rule of the Senate, at any time a motion signed by sixteen
Senators, to bring to a close the debate upon any measure, motion,
other matter pending before the Senate, or the unfinished business,
is presented to the Senate, the Presiding Officer, or clerk at the di-
rection of the Presiding Officer, shall at once state the motion to
the Senate, and one hour after the Senate meets on the following
calendar day but one, he shall lay the motion before the Senate
and direct that the clerk call the roll, and upon the ascertainment
that a quorum is present, the Presiding Officer shall, without de-
bate, submit to the Senate by a yea-and-nay vote the question:‘‘Is it the sense of the Senate that the debate shall be brought
to a close?’’ And if that question shall be decided in the affirmative
by three-fifths of the Senators duly chosen and sworn—except on
a measure or motion to amend the Senate rules, in which case the
necessary affirmative vote shall be two-thirds of the Senators
present and voting—then said measure, motion, or other matter
pending before the Senate, or the unfinished business, shall be the
unfinished business to the exclusion of all other business until dis-
posed of.Thereafter no Senator shall be entitled to speak in all more than
one hour on the measure, motion, or other matter pending before
the Senate, or the unfinished business, the amendments thereto
and motions affecting the same, and it shall be the duty of the Pre-
siding Officer to keep the time of each Senator who speaks. Except
by unanimous consent, no amendment shall be proposed after the
vote to bring the debate to a close, unless it had been submitted
in writing to the Journal Clerk by 1 o’clock p.m. on the day fol-
lowing the filing of the cloture motion if an amendment in the first
degree, and unless it had been so submitted at least one hour prior
to the beginning of the cloture vote if an amendment in the second
degree. No dilatory motion, or dilatory amendment, or amendment
not germane shall be in order. Points of order, including questions
of relevancy, and appeals from the decision of the Presiding Officer,
shall be decided without debate.After no more than thirty hours of consideration of the measure,
motion, or other matter on which cloture has been invoked, the
Senate shall proceed, without any further debate on any question,
to vote on the final disposition thereof to the exclusion of all
amendments not then actually pending before the Senate at that
time and to the exclusion of all motions, except a motion to table,
or to reconsider and one quorum call on demand to establish the
presence of a quorum (and motions required to establish a quorum)
immediately before the final vote begins. The thirty hours may be
increased by the adoption of a motion, decided without debate, by
a three-fifths affirmative vote of the Senators duly chosen and
sworn, and any such time thus agreed upon shall be equally di-
vided between and controlled by the Majority and Minority Leaders
or their designees. However, only one motion to extend time, speci-
fied above, may be made in any one calendar day.If, for any reason, a measure or matter is reprinted after cloture
has been invoked, amendments which were in order prior to the re-
printing of the measure or matter will continue to be in order and
may be conformed and reprinted at the request of the amendment’s
sponsor. The conforming changes must be limited to lineation and
pagination.No Senator shall call up more than two amendments until every
other Senator shall have had the opportunity to do likewise.Notwithstanding other provisions of this rule, a Senator may
yield all or part of his one hour to the majority or minority floor
managers of the measure, motion, or matter or to the Majority or
Minority Leader, but each Senator specified shall not have more
than two hours so yielded to him and may in turn yield such time
to other Senators.Notwithstanding any other provision of this rule, any Senator
who has not used or yielded at least ten minutes, is, if he seeks
recognition, guaranteed up to ten minutes, inclusive, to speak only.After cloture is invoked, the reading of any amendment, includ-
ing House amendments, shall be dispensed with when the proposed
amendment has been identified and has been available in printed
form at the desk of the Members for not less than twenty-four
hours.
The Constitution itself contains provisions for supermajorities and unamendable amendments. Why couldn’t the Senate, with the same nearly absolute power of setting its own rules do the same?
Maybe I’m missing it. What in Rule XXII cannot be amended under Rule V(1)?
And all Rule V(2) does is affirm that the Senate acts as a continuing body and that each session does not start over from scratch. It’s like any other organization where after elections they do not have to go through and start over on standing rules ex nihilo. Rule V(2) automated the Senate’s way of dealing with this question of “is each session of the Senate a new deliberative body or a continuation of the old one?” by starting each session with approving the rules from the last session as its own rules.