The Common Cause lawsuit challenging the constitutionality of the Senate filibuster has focused attention on the origins of the filibuster—with important reactions by Greg Koger, Steve Smith, and Ezra Klein. Because I hate to miss a scuffle over Senate rules in 1806, I thought I’d weigh in as well.
Greg yesterday took issue with Common Cause’s claim that:
….the Senate filibuster persists due to the Senate’s 1806 decision to eliminate the previous question motion from its rules. This is a complex argument that deserves its own post; suffice it to say that I think it is absolutely wrong. In the long run, rules don’t make legislatures; legislators make rules.
Greg’s concern is three-fold: 1) the House kept its previous question (PQ) motion and experienced more 19th century filibustering than the Senate (given the ineffectiveness of the PQ motion), 2) the pre-1806 PQ motion was never actually used to cut off debate (and thus doesn’t signal the original Senate’s commitment to majority rule), and 3) senators over the years could have adopted other means of stemming debate, but they never did—suggesting that senators are inherently not majoritarians.
I apologize for dragging readers back to the days of Aaron Burr (who of course was derided for killing Alexander Hamilton but celebrated by the milk industry). But I think Greg’s 1806 argument deserves attention. Greg doubts that the Senate’s move to drop the PQ motion from its rulebook in 1806—on Aaron Burr’s advice—is responsible for the creation of the filibuster. Steve Smith and I disagree. We argued some time ago that once the PQ motion was eliminated, future Senate leaders were unable to cut off debate on proposals to re-establish majority cloture. And as Steve noted this morning, “the same rule proved to be the basis for a meaningful way to limit debate in the House in the next decade. By dumping the 1806 rule, the Senate could not follow the House path.”
A few thoughts on Greg’s concerns:
First, Greg notes that the House had a previous question motion, and yet experienced more obstruction than the Senate in the decades after 1806. I think the important distinction here is whether or not the PQ motion was necessary and sufficient for ending obstruction in either chamber. To be sure, House leaders had to experiment with the PQ motion in the following decades, honing its application as a cloture motion. (Read the early history here and here.) But having a PQ motion was necessary for securing votes on future House rule changes that empowered the majority party. So, yes, certainly obstruction continued in the House until Speaker Reed devised the Reed Rules in 1891 that essentially eliminated minority obstruction. Of course, he was only able to secure passage of the Reed Rules by first invoking the PQ motion to cut off debate on his Reed Rules. The PQ motion appears to have been necessary—even if not sufficient in its original form—to create a majoritarian House. This is why Steve and I pointed to the 1806 elimination of the rule as critical to the development of the filibuster.
Second, Greg offers the important clarification that before 1806, the PQ motion had not been used as a majority cloture rule. As Greg argues, that limits Common Cause’s ability to infer that the Senate was originally majoritarian. Greg points us to a critical 1962 piece by Joseph Cooper that shows that PQ motion had been used by minorities to postpone debate (rather than by majorities to end debate). Indeed, the uneven, early use of the PQ motion is exactly what led Steve and I to argue that the Senate created the filibuster by accident. Aaron Burr suggested to the Senate that the chamber eliminate the PQ motion because senators didn’t need it: Senate rules already included a motion to postpone…who needs more than one? That’s why Steve and I inferred that the filibuster was created by mistake: Senators could not have known in 1806 that the PQ motion would later evolve into a majority cloture motion in the House. And without the PQ motion, future Senate leaders were handicapped when they tried to create a majority cloture rule of their own (but see Wawro and Schickler’s different view here). Opponents could and did filibuster proposals to ban the filibuster. (The contemporary Senate has no monopoly on dysfunction.)
In sum, I think the events of 1806 remain pivotal to any explanation of the accidental origins of the filibuster.
[Cross-posted at The Monkey Cage]